Dallas Employment Lawyer Blog

How budget cuts affect the EEOC

June 9, 2017 | Adam S. Greenfield

President Trump’s budget adversely affects the Equal Employment Opportunity Commission (EEOC) and other agencies essential to workers’ rights. It asks for the elimination of 249 full-time positions at the EEOC as compared to 2016.

The EEOC enforces numerous federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees on the basis of national origin, race, color, sex, or religion. When an employee brings a charge of discrimination, harassment, or retaliation to the EEOC, the EEOC can investigate it and determine whether there’s reasonable cause to believe there’s been discrimination. Both the employee and the organization are supposed to provide information, which is evaluated by the investigator to make a recommendation about whether there is a reasonable basis for believing there’s been unlawful discrimination.

When the EEOC can’t conclude there’s been discrimination, the employee is told he or she can sue in federal court within 90 days. However, if the EEOC finds there’s reason to believe there’s been discrimination, it may invite the parties to conciliation, and if that fails, the EEOC files a federal lawsuit.

When sexual harassment is about power, not sex

June 2, 2017 | Adam S. Greenfield

One in three women report being sexually harassed on the job in America. People started taking sexual harassment seriously when Anita Hill accused Justice Clarence Thomas of sexual harassment a little more than two decades ago, but only 3% of women who are sexually harassed file a formal complaint because although they want to leave, they need the income from their jobs.

Many people assume that sexual harassment is a result of a man’s sexual interest in a female employee. It’s often assumed that the man is inept or awkward or that the woman is lying or exaggerating. However, most sexual harassment is actually about power, rather than sex. Only about a quarter of sexual harassment cases are simply seductions gone awry, and very few are quid pro quo harassment cases, in which the man asks for a sexual favor in exchange for a promotion or for not firing the woman.

Sexual harassment is a way to keep women in their place and devalue a woman’s contribution in the workplace. Calling attention to a female worker’s sexuality is a way for someone with greater power to make her vulnerable. Often, women who are sexually harassed blame themselves. Most of the time, the people doing the harassing are men, but sometimes women in positions of power are accused of sexual harassment as well.

Gay and Lesbian discrimination in Texas: which options does a worker have?

May 26, 2017 | Adam S. Greenfield

About 429,000 workers who identify as lesbian, gay, bisexual, or transgender live in Texas. According to the Williams Institute, there are about 666,000 LGBT adults in the state, including those working. Discrimination against LGBT employees is prevalent in Texas and across the country, with about 21% of those LGBT employees responding to a 2013 national survey that they’d been treated unfairly by an employer in terms of their hiring, pay, or promotions.

The same or even more discrimination in the workplace has been reported by transgender people. About 79% of respondents from Texas in the largest survey of transgender workers to date reported they’d experienced mistreatment on the job. The discrimination extends to disparity in pay. The median income of men in same sex couples in Texas has been reported as 9% less than the median income of men in opposite sex marriages.

Unfortunately, Texas doesn’t have a state law that explicitly protects these workers from discrimination based on their sexual orientation or gender identity. There are four cities that do provide protection in the form of ordinances against gender identity and sexual orientation discrimination in public and private sector jobs. Seven more cities protect their own local government workers from discrimination on these grounds. Still, that leaves about 86% of Texas employees without any state or local protection for being gay, lesbian, bisexual, or transgender. Therefore, remedies for workers who face discrimination on these grounds are limited.

English-only policies are illegal

May 23, 2017 | Adam S. Greenfield

According to the Equal Employment Opportunity Commission (EEOC), the agency that enforces many federal anti-discrimination laws that cover the workplace, about 17.6% of the population spoke a language other than English as of 2000.

Due to the rise of diversity, many employers started implementing English-only workplace policies to stop their employees from talking in languages other than English. Sometimes the policies required employees to speak English at all times on the job, or they required them to speak English while performing specific tasks.

These policies are controversial and may be motivated by xenophobia. In general, they discriminate against employees who have foreign backgrounds who may not be comfortable speaking in English at all times. Title VII doesn’t explicitly prohibit discrimination on the basis of native language. However, the EEOC does take the position that English-only policies tend to discriminate against workers on the basis of their national origin, which is a Title VII violation.

Discrimination is Alive and Well in America

May 16, 2017 | Adam S. Greenfield

Despite claims several years ago that we live in a post-racial, post-feminist society, discrimination is alive and well in America. There are several federal statutes that prohibit discrimination on the basis of membership in protected classes, but employers continue to treat employees in disparate ways based on their identities rather than merit. Many of the federal statutes are enforced by the Equal Employment Opportunity Commission (EEOC).

To bring a lawsuit under any of these statutes, you must first file a charge with the EEOC within the appropriate time window. The EEOC may investigate, and only after it issues a notice of right to sue can you pursue a remedy in court. The EEOC’s determination that it will not pursue your claim any further doesn’t mean that you haven’t been a victim of discrimination based on your membership in a protected category, and it may still be worthwhile to pursue recourse through civil litigation. Your damages under laws such as Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) are capped based on the size of your employer.

In 2016, the EEOC noted 9,308 charges were filed in Texas alone. This was 10.2% of the total charges filed in the United States and very slightly down from 2015, when 9,539 charges were filed in Texas. Of the charges filed in 2016 in Texas, 3,244 were based on race, 403 were based on color, 2,765 were based on sex, 1,190 were based on national origin, and 358 were based on religion.

Women deserve paid maternity leave (and so do men)

May 12, 2017 | Adam S. Greenfield

Half of the workforce is female, but only 12% of women have paid maternity leave, according to the United States Department of Labor. The United States is the only industrialized country around the globe that doesn’t require employers to provide paid maternity leave, even though studies show health benefits to children, mothers, and fathers when parental leave is provided. Paid maternity and paternity leave make sense both economically and from the standpoint of health.

Infant mortality is reduced by up to 10% in 141 countries with paid leave policies. This leave allows for infants to receive necessary medical care and vaccinations during one of their most vulnerable times of life.

Parental leave also increases how long mothers feel comfortable breastfeeding. Mothers who receive paid leave breastfeed for twice as long as those who don’t get leave. Since breastfeeding decreases the likelihood of infection, asthma, obesity, and SIDS, there are benefits for the health care system in improving the chances of a mother being able to breastfeed comfortably for a longer duration.

Transgender employees need bathroom access

May 5, 2017 | Adam S. Greenfield

Most employees take it for granted that they will have access to a restroom. Recently, however, the news has shed light on the particular difficulties that transgender individuals face when they need to use the bathroom.

Texas legislators are considering a bill (Senate Bill 6) that would prohibit transgender individuals from using the bathroom that corresponds to their gender identity. This is a harmful measure that would potentially keep transgender individuals from being in public spaces. Supposedly, this is to protect cisgender individuals, but such laws support people’s private and unfounded prejudices, which has the effect of actually endangering transgender individuals.

Often, transgender individuals are confronted or otherwise treated with hostility, no matter which gender’s restroom they use. Employers are legally required to give their workers reasonable access to restrooms, and transgender employees must be able to access bathrooms in their workplace to be able to work and support themselves.

What will Neil Gorsuch mean for workers’ rights?

May 2, 2017 | Adam S. Greenfield

Neil M. Gorsuch has recently become the 113th justice of the United States Supreme Court. Republicans had refused to consider President Obama’s Supreme Court nominee, Judge Merrick Garland, claiming that the choice of a justice to replace Justice Antonin Scalia should belong to the president who succeeded Obama. Once Democrats filibustered, they altered the Senate rules in order to push Judge Gorsuch through. Appointed by President Trump and aggressively pushed through the confirmation process, Judge Gorsuch may be able to serve on the Court for 30 or more years and is likely to leave a lasting impression on the Court’s jurisprudence.

The confirmation is a potential disaster for workers’ rights. Although Judge Gorsuch is a highly esteemed judge, his past decisions show far more sympathy for corporations than their employees. He is highly likely to rule in a similar fashion in the future, although there have been Supreme Court justices in the past whose views shifted once they were on the bench.

Judge Gorsuch’s decisions during his decade-long tenure on the United States Court of Appeals for the 10th Circuit have shown he believes that corporations should have the same rights of religious freedom and free speech as people. This approach—placing corporations on the same playing field as human beings—has helped big business in the past and evinces little concern for workers and their lives.

It’s time for a $15 minimum wage in Texas

April 25, 2017 | Adam S. Greenfield

The Texas Minimum Wage Act establishes minimum wage for nonexempt employees in Texas. It has adopted the federal minimum wage, and currently minimum wage is $7.25 an hour. This is too low for anybody to live on, and it is shocking when you consider how much exempt employees such as CEOs of corporations and professionals can make. Since the federal minimum wage hasn’t been changed since 2009, it has not kept pace with inflation, and what that $7.25 minimum wage represents is much less than what it previously meant.

The Texas Minimum Wage Act also provides for agricultural piece rate workers, exempts certain employers, allows employers to count trips and the value of meals and lodging toward their employees’ minimum wage, and specifies civil remedies for violations.

With specified restrictions, employers may use an employee’s tips and the value of meals and lodging toward the minimum wage that must be paid. The law also specifies that those who live at the job site for on-call time do not need to be paid in addition to their assigned working time. Certain other employees who have productivity impairments, have mental health or development problems, or are of a certain age may also be paid sub-minimum wage.

Minimum wage and overtime pay saved the economy (and the world)

April 21, 2017 | Adam S. Greenfield

Before minimum wage and overtime were instituted, the average American worker worked brutal hours. Workers were easily exploited by their wealthier employers, which forced them to work around the clock just to be able to survive, living paycheck to paycheck and not making much more than what it took to feed their families.

In 1938, President Franklin D. Roosevelt signed a number of bills, one of which was the Fair Labor Standards Act of 1938 (FLSA). The FLSA applied to industries that together held about one-fifth of the labor force, and, among other things, it set a minimum wage at 25 cents for those industries.

Importantly, it also introduced overtime regulations that guaranteed all nonexempt workers be paid time and a half for hours worked over 40 hours a week. These rules were intended to address the exploitation of workers and the lack of jobs.