Texas and federal discrimination law prohibit only certain types of employment discrimination. An employee may file a charge of discrimination or lawsuit on employment discrimination only for a trait protected by law. If your employer takes action against your job or compensation then you must show the employer did so because you have a protected trait. The traits protected under federal and Texas law include race, ethnicity, national origin, disability, sex, gender, religion and age.
The law also protects certain employee acts from employment discrimination. These include reporting discrimination internally or externally, participating in an investigation of discrimination, filing a wage claim for unpaid wages, participating as a member of the armed forces, exercising FMLA rights and participating in a union. A small number of Texas cities have prohibited discrimination against employees who are transgendered and sexual orientation.
However, if the law has not prohibited your employer from taking negative action against your job, what is often called an “adverse employment action”, then your employer is typically free to take action on whatever basis it wishes. Even if it treats you differently for a reason completely unrelated to your job performance.
Employment discrimination in Texas
This is an important point often overlooked by people who have been mistreated in their jobs. As judges frequently point out, anti-discrimination laws are not a civility code that requires employers to be nice. Supervisors and coworkers are generally free to behave rudely, set unrealistic performance requirements, underpay for the value of work. So long as it does not violate one of the limited employment laws under federal and Texas law.
I often receive calls and emails from people fired and believe they suffered discrimination and wrongful termination. I often agree that mistreatment took place; but when we speak of “discrimination” and “wrongful termination” these terms have specific legal meaning.
You may have suffered discriminated against because you don’t like football or some other basis the law does not protect; but if the law does not protect that status there is no legal remedy under discrimination law. You may have a valid claim for unemployment benefits and you may have other claims under different employment laws.
Adverse employment actions in discrimination in Texas
If you have suffered an adverse employment action and you believe it is due to a protected trait or the exercise of a protected employment right, you must show that the employer acted on the basis of that prohibited reason. You cannot prevail on a discrimination claim in Texas merely by proving you have a protected trait or exercised a protected right because your employer took an adverse employment action against you.
For example, if you are a man fired for performance issues, it is not enough that a woman also does your job and she kept her job. You must show the employer fired you because of sex and the performance issues were not the real reason. The performance issues may be real and the woman may not have performance problems.
However, it would be sex discrimination if both employees had performance issues but only the man lost his job. Suffering an adverse action is not the only way an employee can suffer employment discrimination. Employees also suffer prohibited discrimination through workplace harassment, inappropriate refusal to provide a reasonable accommodation to a disability or religious practice, retaliation for complaining about illegal employment conduct or exercising a protected right.
Filing a lawsuit for employment discrimination in Texas
In Texas, filing an employment discrimination lawsuit is different from other litigation. For most employment discrimination lawsuits, employees must first complete an administrative process. This administrative process involves filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and/or the Texas Workforce Commission.
A charge filed with one agency can cross-file to the other. Filing a charge of discrimination kicks off an administrative process to investigate and potentially resolve your discrimination claim. After investigation the agency may ask the parties to mediate the claim. In some instances the agency will pursue litigation on the employee’s behalf or with the cooperation of your employment discrimination attorney.
EEOC and TWC administrative charge process
Charges of discrimination must be filed with either agency within a short period of time after the discriminatory act. If you do not file the charge before the deadline, you lose the right to file the charge or file a lawsuit under any statute requiring you to first file a charge. Generally you must file a charge within 180 days of the discriminatory event.
If the administrative process resolves the claim, then that will bring your claim to a resolution. That can be a great solution to a claim, especially if you still work for the employer and want to keep your job. The EEOC or TWC can be effective at mediating resolutions to ongoing problems. The threat of litigation down the road can encourage employers to take positive steps early on.
However, the administrative charge process does not always resolve a claim and litigation becomes necessary. There are several points in the administrative process where the EEOC or TWC may decline to continue pursuing the claim. When that happens the agency will issue a notice to the employee, and your attorney, indicating this result. The notice will state the employee has the right to sue.
Once the agency issues a right to sue notice there is very little time to file suit. If you do not file suit before the time limit expires then you cannot file suit at a later date. For EEOC claims this is 90 days. For TWC claims this is just 60 days.
You and your attorney may also make the decision to stop the agency process before it reaches any conclusion and pursue litigation. If the charge remains unresolved after 180 days, then you or your attorney can request the right to sue letter and proceed with litigation.
Employment discrimination claims that follow a different process
Not all employment discrimination claims require you to follow this process. There are three federal discrimination claims you can file that do not follow this process entirely or at all. These include:
- Race discrimination claims under Section 1981 of the Civil Rights Act of 1866
- Age discrimination claims under the Age Discrimination in Employment Act of 1967
- Sex-based wage discrimination claims under the Equal Pay Act
Section 1981 of the Civil Rights Act of 1866 prohibits race-based discrimination in contracts, including employment. The Civil Rights Act of 1866 does not require any specific procedure before filing suit so filing a charge of discrimination is not required.
The Age Discrimination in Employment Act (ADEA) does exactly what the name indicates. The ADEA requires filing a charge but does not require obtaining a Notice of Right to Sue before filing suit. It does require waiting sixty days after filing the charge with the EEOC before filing a lawsuit. If the EEOC issues a Notice of Right to Sue the lawsuit must be filed within 90 days.
The Equal Pay Act prohibits sex-based discrimination in compensation. It does not require any filing of a charge before filing suit. Unlike Title VII of the Civil Rights Act of 1964, the Equal Pay Act requires filing the lawsuit within two years of the discriminatory act.
Putting the pieces together
Deciding how to proceed with an employment discrimination claim is not an easy task. There are many strategic decisions to make before taking any action. Employers on the other side of employment discrimination claims attack at every opportunity so even small errors can become big problems. Some of the decisions to make include:
- What federal, state and local laws may apply;
- Whether a charge of discrimination must be filed and if so with which agency;
- Which agency should receive the charge of discrimination;
- What types of discrimination should or must be alleged;
- What goals you seek to accomplish;
- Whether those goals can realistically be accomplished;
- Whether litigation is necessary or preferable;
- What are the likely outcomes from litigating;
- Whether state court or federal court is a better venue for litigation;
- If the EEOC or TWC should take lead in litigating your claims;
- Whether to include the agency, if it is an option, in litigation;
- What facts you need and should allege in a charge of discrimination;
- If you win at trial, how will you recover from the employer.
Not only are these decisions complex but they rely upon a great deal of technical legal information and experience litigating employment discrimination claims. The best way to ensure a good game plan for your case is to hire an experienced employment attorney to represent you from the outset. The earlier you hire an attorney the earlier your attorney can start making decisions with an end goal in mind. Employers typically hire experienced defense attorneys. You need an experienced attorney on your side, too. Don’t wait until you need to sue on your case to hire an attorney.