Pennies and an expletive

In its employment law claim filed in federal court in Georgia, the USDOL claimed that the employee made a wage complaint after he resigned, and the employer did not pay his final wages. In retaliation, according to the USDOL, the employer paid his final wages of $915 by delivering thousands of these oily pennies to the worker’s home accompanied by an expletive written on the final pay stub.

The pennies blocked and stained his driveway and took almost seven hours to remove. Moreover, the company was also charged with publishing defamatory statements about that employee on its website.

Lawsuit

In its federal lawsuit, the USDOL is seeking $36,971 in back wages and liquidated damages against this business for allegedly violating retaliation, overtime, and recordkeeping provisions of the Federal Labor Standards Act.

The USDOL claimed this business violated FLSA’s overtime requirements by paying other employees straight time for all the hours they worked, failed to pay overtime rates when they worked more than 40 hours in a workweek, and did not keep adequate and accurate pay rate and work hour records. The USDOL wants to permanently enjoin this business from future FLSA violations involving retaliation, overtime, and recordkeeping.

Laws

Federal law protects workers who engage with or make oral and written complaints with the USDOL from retaliation. Workers may obtain information from the USDOL about their workplace rights without being harassed or intimidated.

Employers violate the FLSA if they discharge or discriminate against workers who file complaints under FLSA or testify or participate in related proceedings. Most courts have also found that internal complaints to employers are protected against retaliation under federal law.

Federal and Texas laws protect workers from retaliation from reporting violation of wage, safety, discrimination, harassment, and other workplace laws.  Attorneys can assist workers who face illegal workplace retaliation and help them pursue private legal action.

If you’re in that situation after being subjected to sexual harassment, then you might be wondering what you can do to find accountability. A lawsuit could help you obtain that outcome while also assisting you in recovering compensation, but these cases are often aggressively fought against. This means that you need to know what you can do to better bring the fight to your employer, amplify your voice, and maximize your chances of achieving a favorable outcome.

Building your sexual harassment case

Regardless of how obvious the sexual harassment that you were subjected to may seem, you have to be thorough and detailed in the presentation of your case. This means that you have to be diligent in building your case. Here are some things that you can do now to ensure that you have the best case possible moving forward:

• Identify and talk to witnesses: This is a basic first step, but it’s an important one that you shouldn’t overlook. There are probably a number of co-workers who have seen the harassment to which you’ve been subjected, and they may have been subjected to similar treatment. This testimony can be powerful in your sexual harassment claim, especially if the behavior in question was prevalent and had been brought to your employer’s attention previously.
• Write down experiences shortly after they occur: Our memories tend to get fuzzy over time, which can be a disservice to you and your claim when it comes to recounting instances of sexual harassment. That’s why it’s best to write down every incident of sexual harassment shortly after it occurs. The more detail you can provide, the more compelling your case will be. The same holds true in regard to your communications with your employer. You want to be able to paint a picture of how your employer responded to your complaints of sexual harassment, as this could be key to your case.
• Build up your employment record: In most sexual harassment cases, the employer claims that it made an adverse employment decision not out of retaliation, but rather due to the employee’s poor work performance. Therefore, you should do everything you can to counter that argument, including retaining your work appraisals, keeping emails that praise your work performance, and building up a strong attendance record.
• Prepare yourself to hold strong: As you pursue a sexual harassment and/or retaliation claim, you need to be prepared to have your character attacked and your claim minimized by the other side. This can be emotionally draining, and it might make it all the more tempting to take a settlement offer. But you need to stay strong if you want to find accountability to the fullest extent possible. Prepare yourself for the emotional burden and know when a settlement offer isn’t in your best interests.

Do you need an ally on your side?

The fight to bring sexual harassment to an end in your workplace can be a lonely endeavor. But your fight in the courtroom doesn’t have to be. Employment attorneys who are experienced in this area of the law stand ready to help you amplify your voice and fight for the compensation that you need and deserve. If you’d like to learn more about how to go about doing that, then please continue to browse our website to see what we have to offer.

Important protections afforded to those who are pregnant

Discrimination on the basis of pregnancy, childbirth or a related medical condition is considered unlawful discrimination based on sex and is prohibited. Workers who are experiencing pregnancy or a pregnancy-related medical condition must be treated in the same way as any other employee or applicant for employment with similar abilities or limitations.

An employer cannot refuse to hire a woman because of her pregnancy-related medical condition as long as she is able to perform the major functions of the job. Employers are prohibited from discriminating against job applicants on the basis of their pregnancy or pregnancy-related medical condition.

There are a variety of different types of pregnancy discrimination that are prohibited. Employers cannot single out pregnancy-related medical conditions to determine the worker’s ability to work. Employers must use a similar procedure to determine the ability of a pregnant employee to work as they use to determine the ability of other workers to perform the duties of their job.

In addition, pregnant employees must be permitted to work as long as they are able to perform their jobs. Employers must also leave open a job for a pregnancy-related absence for the same length of time they would leave open a job for an employee on sick or disability leave.

Federal and state employment laws provide essential protections to pregnant workers and other workers when they are discriminated against in the application and employment process. For that reason, pregnant employees should be familiar with protections against discrimination.

As it turns out, American employees believe a bad workplace environment is management’s responsibility. A Gallup survey from February of this year showed that 70% of employees believe that a manager is to blame for a toxic work environment that contributes to worker disengagement. In the survey, more than half were looking for a new job or open to a new one.

How does the law define a hostile work environment?

Federal law defines a hostile work environment as the harassment by one individual toward another that creates workplace conditions that are intimidating, hostile or abusive, or when facing this treatment is a condition of continued employment. The law also prohibits harassment or termination in retaliation for a harassment complaint, inquiry, testimony or filing.

Offensive conduct may include off-color jokes, racial slurs, threats, physical intimidation, insults or ridicule, and may occur when:

• the harasser is a superior, co-worker, agent or non-employee
• harassment of another affects another co-worker
• harassment is chronic and does not involve economic injury or job termination

In its recommendations, the EEOC encourages management to foster a positive environment by clearly stating a zero-tolerance policy for such behavior and establishing a complaint or grievance process.

Who is responsible in a harassment claim?

Regardless of who the individual is who is discriminating against or harassing another person, it is the employer who will be held liable, both under federal and Texas state laws. The charges against them may include creating or being the source of hostile work conditions. A harassment claim may seek compensation for:

• loss of pay
• cost of a new job search
• medical bills
• pain and suffering

The court may also assess punitive damages to the employer as a deterrent against similar future actions. For Houston residents who have experienced workplace harassment or discrimination, it is important to find out how the law protects their rights when pursuing a claim. And if you need a Huston employment lawyer to help you through your claim, TB Robinson can help

What are reasonable accommodations?

Under the ADA, reasonable accommodations are those that help disabled workers have equal rights in employment as workers who are not disabled. Reasonable accommodations may take the form of a job modification, a modification to the work environment or the way that the work is performed. Reasonable accommodations generally do not cost much. According to one source, 58% of accommodations can be done at no cost or around $500.

What is an undue hardship?

There is an exception to reasonable accommodations — undue hardship. Employers covered by the ADA do not have to provide reasonable accommodations if doing so would cause them an “undue hardship.” An undue hardship exists when providing the accommodation would be significantly difficult or expensive, given the size of the workplace, financial resources and the nature and structure of how the workplace operates.

Learn more about discrimination in the workplace

Disabled individuals who want to work should not be discriminated against if all it takes for them to perform their job is a reasonable accommodation. This post is for educational purposes only and does not contain legal advice. Those who want to learn more about disability discrimination in the workplace are encouraged to explore our firm’s website for further information.

While we could spend a lot of time talking about each kind of employment discrimination, this week we’re going to look at some of the major points of disability discrimination.

What is disability discrimination?

Disability discrimination can occur a few different ways. The first way is that an employer treats you unfavorably because you have a disability. The second type of discrimination occurs when an employer does not treat you equally to other applicants or employees because you have a history of disability, a short-term disability, or you have a minor disability that has minimal impairment.

A look at reasonable accommodation

While workers who are covered under certain laws are protected from disability discrimination, the law also requires that employers provide reasonable accommodations to these workers to ensure that they have equal employment opportunities. These accommodations could include modifications to the workplace for accessibility purposes, but it could also include implementation of an interpreter, the assignment of certain work duties, and anything else that helps a disabled individual better apply for or perform his or her job.

The limitations of reasonable accommodation

If you need accommodation at work, then you should discuss the matter with your employer. While they should try to make efforts to accommodate you, the law does allow them to forego a reasonable accommodation request if complying with the request would create an undue hardship on it. To determine if an accommodation causes an undue hardship, a court will consider the employer’s resources in conjunction with the cost of the accommodation, in addition to some other factors. An employer can also avoid providing an accommodation if it interferes with the functioning of business operations.

Finding middle ground

Even if an employer refuses to make a requested accommodation because it causes an undue burden, you shouldn’t then throw up your arms and yell about taking legal action. Instead, you’ll probably find yourself in a better position if you try to find common ground with your employer. After all, your employer isn’t required to accommodate your request exactly. There might be a way to find the assistance you need at a cost that is acceptable to your employer. By making the effort to find a middle ground, you better position yourself for legal action in the event that your employer still refuses to comply.

Taking legal action

A failure to provide reasonable accommodation is certainly one basis for an disability discrimination claim. But there are many other forms of disability discrimination, as well as age, sex, race, and religious discrimination, that you might be able to pursue depending on the facts of your case.

So, if an employer has wronged you, then you might want to think about discussing your case with an attorney who is experienced and dedicated to handling employment law matters. One of these legal professionals can work with you to build the case you need to protect your interests as fully as possible. Hopefully then you can find accountability, impose liability, and receive the compensation you deserve to the right the wrong that has been unfairly thrust upon you.

This can create a problem for both the employee and the employer who needs someone to do their job. However, workers who need to leave for medical reasons are guaranteed to have their jobs back in certain circumstances through the Family and Medical Leave Act (FMLA).

Who is protected by the FMLA?

Not all employers are covered under this law. Only employers who have 50 employees, public and governmental agencies and schools need to follow FMLA rules. Also, the employee must have worked for an eligible employer for at least 12 months and has worked at least 1,250 hours in the preceding 12 months prior to the leave.

How much leave can be taken?

Eligible employees can take up to 12 weeks of leave in a 12 month period of time if they have a child, have a serious medical problem making them unable to perform the job tasks, taking care of spouse, child or parent who has a serious health condition, or if an immediate family member is called for active duty.

Many people in Texas experienced health complications or have family members that do. People may not be able to work for a period of time because of that, but it does not mean that they should lose their jobs because of it. The FMLA protects certain employees and ensures they will have the same job that they left when they return from leave. However, not all employers follow the law. Experienced attorneys understand these laws and may be able to help protect people’s rights.

Wage inequality

According to the accomplished law professor, she has 39 years of experience under her belt, as well as at least 80 law review articles and authored or co-authored 22 books but still earns at least $31,000 less than three male professors at the University of Texas Law School. Some of them teach the same course as she does, but have fewer publications or lesser experience than she has.

This is not the first time she has complained about unequal wages. In 2011, she filed a complaint when she learned that a male professor with a shorter career earned about $50,000 more than she did. Years later, the wage gap has decreased to $17,000 but has not ended. Currently, her Equal Pay Act and Sex Discrimination claims are ongoing.

Reactions to lawsuits

Other female professors have also filed lawsuits against their colleges for unequal pays, but have seen their careers impacted by speaking out. Some have complained about being removed from important faculty committees and placed on other committees that do not determine pay, and have also been labeled ‘poison’ by administration. This fear of retaliation is why female professors have stayed quiet for a long time, but the tide is turning as the inequality becomes evident.

Female workers, regardless of the field they are in, are generally paid lesser than their male counterparts. Wage inequality and sex discrimination is prohibited under federal and state law, and those who are experiencing it should know they have legal options they can avail. An experienced attorney can also discuss responses to retaliation with claimants.

Researchers in the study found 500 college and graduate school students, gave them extensive psychological evaluations and then followed their careers over a period of about 14 years. They then interviewed both the participants and coworkers of participants to gauge workplace behaviors and relative standing within a given company. The study results showed that the participants who engaged in toxic behaviors (such as rudeness and deception) didn’t rise any higher or faster than those who were kind.

This is great news for anyone who has always heard that “nice guys finish last.” The downside, however, is that while jerks don’t do better than kind workers, they also don’t seem to do any worse in terms of their advancement within an organization.

Hopefully, organizational leaders will take these study results to heart. Because even though the two types of employees may rise to similar levels of leadership, the jerks are much more likely to do damage to the company when they are put in charge. It is often these bosses that engage in workplace bullying, sexual harassment, discrimination and other problematic behaviors.

Even if they don’t explicitly break employment laws, jerk bosses nonetheless erode workplace culture and morale. A different study by Georgetown University included surveys with employees who had experienced toxic workplace relationships. Among survey respondents:

• 78 percent reported feeling less committed to the organization they worked for
• 66 percent admitted that their own work had declined in quality because of the toxic relationship
• 25 percent said that they ended up taking stress and anger (from the relationship) out on customers

There may have been a time when a win-at-all-costs mentality was a desirable trait among employers, but thankfully, our culture seems to be changing to reward those who lead by developing good relationships with others. Nonetheless, the “jerks” in any organization can cause significant difficulties for their coworkers and the organization as a whole – including liability in employment lawsuits.

If you’ve been the victim of discrimination, harassment or any other illegal workplace behavior, please discuss your legal options with an experienced and caring employment law attorney.

A recent survey of women in the technology industry conducted by IT firm Ensono illuminates some of the inroads women are making in tech and some of the challenges they continue to face.

It’s widely understood that high-tech is dominated at every level by men. However, women are making slow progress, Ensono says.

Conferences: doubled-edged opportunities

Tech conferences and industry events present opportunities for professional advancement for women – and offer similar opportunities for executives to find and poach talent from competitors. It’s often critical for conference attendees to speak address the gatherings and interact with peers in order to keep their careers on upward trajectories.

One measure of the progress women are making in tech can be found in the European conference series The Next Web (TNW). In 2018, just nine women of color – a mere 5 percent – were TNW keynote speakers. Last year, the figure rose to 14 percent (or 49 speakers).

While that shows some progress, the following figures show that much remains to be done: of the women who delivered keynote speeches at technology conferences in the past year, a whopping 39 percent reported that they were sexually harassed at the conferences, according to Ensono’s survey of 500 U.S. and U.K. women who attended conferences over those 12 months.

Double-digit discrimination

Nearly 6 in 10 women of color said they were subjected to gender discrimination at a tech conference. The figure for white women was lower – 43 percent – though still substantial.

Put those figures together, and approximately two-thirds of female keynote speakers reported experiencing gender discrimination firsthand at tech conferences.

Note: just 28 percent of keynote speakers at technology conferences over the last three years were women. Women of color made up just 8 percent of the speakers.

Does remote work help?

Some who look at the numbers might wonder if one of the few upsides to the pandemic is that many conferences are being held remotely now, possibly reducing opportunities for sexual harassment and gender discrimination.

Lin Classon, Ensono’s VP of public cloud products, says that might not be so. “Considering many people feel more comfortable being aggressive online than in-person, virtual meetings and networking events put female attendees in a vulnerable position.”

Possible answers and solutions

She said employers – pre-pandemic, during the pandemic and post-pandemic will “need to ensure they equip their associates with the tools and resources to properly address any negative experiences.”

For some women who experience sexual harassment or gender discrimination, answers and solutions won’t come from employers, of course. For them, the most advantageous course of action will be to find an attorney experienced in protecting workplace rights and careers in employment law litigation.

There are several issues which might lead to retaliation, not the least of which is when an employee blows the whistle or calls out workplace behaviors or conditions, including discrimination or refusal to adhere to regulations such as safety guidelines. In some cases, that retaliation is even coupled with discrimination.

If you’re experiencing retaliation from your employer at your job, you’ll likely need to seek legal representation to fight it. Here’s what to do in the meantime:

• Document any instances or incidents that you believe help make the case that you’re being retaliated against. For example, if your communications with your boss suddenly turn chilly and they abruptly become terse, save any emails or written correspondence, because it can supplement other evidence. Keep a detailed log of incidents you experience as well, including dates and times.
• File a formal complaint with the HR department. Having an official record of your concerns is helpful to establishing the legal case.
• Ask any witnesses to speak up on your behalf if needed. This could include trusted colleagues who have indicated they’ve observed the retaliatory behaviors, or those who were in direct proximity to them.
• Remain calm, cordial, and respectful while at work. Don’t provide any fodder for the defense to use against you.
• Stay focused on your end goal, which is seeking justice for the retaliation. Don’t react to the retaliation with behaviors that could burn bridges or create additional problems.

Make sure you create a supportive network for yourself to get through this tough period, since retaliation at work can feel very demoralizing and stressful.

It’s important that you continue to stand up for your rights and the rights of other workers when you see them being violated. Intimidation and retaliation should not stop people from striving for a better workplace.

This interactive good-faith process includes an investigation into your needs and the limitations you may have. It also addresses how the employer may meet your needs through reasonable accommodations.

Reasonable accommodations

Reasonable is a term that can be subjective. It may include a variety of things when it comes to accommodations. For example, you may request a change in your work schedule or job duties. Your employer may assist you through changing your work area or providing different aids to assist you in doing your job duties.

In general, it is often a doable accommodation that will not cause hardship for your employer. If you need an accommodation that would be excessively expensive or that would cause issues with the general operation of the business, then the employer may be able to deny it. However, the interactive process should help avoid such issues and find a solution that is reasonable, even if it is not what you originally wanted.

Getting the process started

The interactive process must begin when your employer becomes aware that you need accommodations. This could be because you make a request, but it also may be as simple as your employer observing you having difficulties doing your job duties.

Your employer must look into your situation, which may require you to provide documentation and information. You should comply completely with your employer to get the most from the process. You both must be open to discussing the situation and reaching an agreeable solution.

What is sexual harassment?

In the workspace, it is unlawful to make unwelcomed sexual advances, requests or favors to fellow employees, staff members or even clients. This is typically seen through verbal and/or physical provocations that could potentially be sexual in nature or not. However, it is not always obvious to know what sexual harassment is. It is important to know what could be considered inappropriate behavior in the workplace.

Inappropriate conduct:

Many of the following behaviors listed below qualify as potential sexual harassment:

• Consistent compliments of a co-worker’s appearance
• Mentioning the attractiveness of other people in front of other employees
• Talking about an employee’s sex life
• Asking a co-worker about his or her sex life
• Passing on pornographic or nude content in the workplace, including shirtless, bikini and/or underwear pictures
• Making sexual jokes
• Sending suggestive texts messages and emails with strong sexual content
• Giving unwanted sexual and/or romantic gifts to someone
• Spreading sexual rumors about an employee
• Unwanted touching of a fellow employee

The list could go on and there are several more behaviors that could be considered toxic and hostile in the work environment. It is important to know what these are to further put a stop to them and make sure that every employee is safe.

Specifically, a hostile working environment is a legal term with which actions such as discrimination and harassment coincide. Simply experiencing negative behavior like bullying may not have legal implications. So, how can you tell if you are a victim of something more serious? Something with legal implications, that is.

Defining unlawful workplace harassment

An isolated incident, small remarks or general annoyances may be construed as bullying. But they are not necessarily harassment. Unlawful harassment occurs when unwelcome behaviors based on protected statuses lead to continued employment conditions or a hostile environment. These protected statuses are usually one’s race, sex, religion, color, disability or nationality.

Furthermore, a supervisor, co-worker or even a non-employee may be the harasser. It may be harassment if the harasser does one or more of the following:

• Uses slurs or makes offensive jokes
• Physically threatens or intimidates you
• Mocks or ridicules you
• Interferes with your ability to work
• Posts offensive objects or pictures

Texas and the federal government take these matters very seriously. And employers who do not make strides to prevent unlawful harassment may be liable for the actions of your harasser.

When an employer essentially forces an employee to quit, the resignation signifies constructive discharge, which is a type of wrongful termination. Constructive discharge makes it look like the employee chose to quit on paper – even if the actual circumstances of the departure involved harassment, discrimination, retaliation and other problems.

Constructive discharge is a tactic that gives the employer more protection against criticism for discrimination or retaliation. However, employers are not entirely immune to accountability. Former employees can still speak up.

Employers can make quitting the only reasonable option

Regardless of whether the intent was to force an employee to quit, an employer may have created conditions that were unreasonable and intolerable, such as:

• Decreasing your pay or demoting you
• Unfair work assignments or team reassignment
• Pressure to retire early
• Verbal or physical harassment

Furthermore, the employee must link these actions to discrimination against a protected class. For example, if you have a disability and your employer refused reasonable accommodations, you might feel that you have no choice but to quit the job for the sake of your health.

Constructive discharge claims are difficult but significant

Although it can be challenging to prove constructive discharge, these claims are important to employees. Without proving constructive discharge, you might not be able to claim unemployment and other benefits. In addition, you would not receive compensation for the damages that you suffered, such as back pay.

Set the record straight after you lose a job due to a hostile or discriminatory work environment. A qualified employment law attorney can evaluate whether you have a claim and help you gather the evidence you need.

Retaliation is a real threat to some workers who choose to bring attention to wrongful acts, omissions, or behaviors occurring in their workplaces. For example, if an individual is subjected to harassment at the hands of their supervisor, they should be free to report the misconduct to their employer without feeling as though they may be reprimanded for their actions.

For some workers, reporting bad conduct or deeds can lead to serious threats to their employment. Workers have wrongfully lost their jobs, been demoted, and been deprived of work-related benefits for bringing attention to shortfalls or misdeeds practiced by their employers and agents of their employers. These unjust actions taken against workers are examples of retaliation, and under many state and federal statutes, retaliation is unlawful.

In order to pursue an employment action based on retaliation, a worker must be able to show that the activities that they were engaged in that resulted in the retaliation were protected under the law. They must also show that they were punished for engaging in the protected action by their employer. Different remedies exist to provide victims of retaliation with compensation for their losses.

Workplace retaliation is a serious problem for individuals who wish to do what is right even when it may threaten their livelihoods. Possible claims based on retaliation can be reviewed by lawyers who work in the employment discrimination field, and readers of this post should know that its contents provide no legal advice.

Regulations

In Texas, there have been many efforts done to prevent sexual harassment and several of their regulations have been issued by The Texas Supreme Court and are supervised by the U.S. Equal Employment Opportunity Commission (EEOC). For instance, they say that sexual harassment includes unwanted sexual advances, sexual favors and several other of verbal and/or physical contact.

It is important to note that the victims and aggressors can be either man or women. One must not assume that this dynamic only exists between men and women. This can also happen to people of the same sex, as well. The aggressor can be identified as a supervisor, manager, or even clients and/or customers.

The aftermath

There are several steps that can be taken if someone has been the victim of sexual harassment in the workspace. For one, several victims tend to feel unsafe after the event has happened so their well-being must be a priority. Keeping a timeline of the event is also of vital importance and communication with trusted co-workers or supervisors will also help in order to alert them of the situation.

One of the main steps to take are for victims to look into their employee handbooks and look for where to file their complaints, which would be at human resources or to their supervisor. If the victim still feels at risk, then another option is for them to document what they have experienced. When the victim feels ready, he or she can file a formal complaint to the EEOC or Texas Workforce Commission. The victim might also choose to potentially file a lawsuit, which can also be an option, at a given time.

Victims should know that they are not alone and there are several remedies that can be done after the event has taken place, but it is important for them to feel that they are safe and that there are people who are willing to help.

In South Carolina, a company paid more than $300,000 to settle a lawsuit for a sexual harassment report and the resulting retaliation. Workplace retaliation can take place in many forms. Knowing what workplace revenge can look like is the first step in filing a claim for it.

The forms of retaliation

Workplace retaliation is the unjust punishment of an employee for committing a legally defended activity. Common examples of these punishments include:

• Discipline: an employer can punish an employee by making them take on additional tasks, work inconvenient shifts, or denying workplace requests like a vacation or shift changes.
• Wrongful termination: when an employer fires an employee to get back at them for something, the law considers it a wrongful termination.
• Demotion or reassignment: moving an employee to another position that is worse or less convenient than the original post can be retaliation.
• Salary reduction: whether the employer is unjustly cutting hours, or reducing an employee’s wages, neither is an acceptable response as retaliation.

These methods of retaliation are straightforward in their punishment, but other methods are harder to recognize. Acts like workplace harassment are tough to spot when it occurs solely through verbal statements.

Knowing the signs and holding retaliators accountable

Proving that an employee is the subject of workplace retaliation is challenging. Retaliators can try to hide behind excuses like ignorance or that the actions were necessary for the workplace. An attorney can speak with an employee about their situation to determine if they are the subject of workplace retaliation.

While many perceive the workplace to be a civil location, countless stories have arisen of discrimination. Prime cases of workplace incivility tend to dominate headlines, where an indiscretion by a boss evokes gasps. However, some discrimination is harder to detect, and thus harder to prove. In a workplace there are two key categories for employee discrimination: disparate treatment and disparate impact.

What is disparate treatment?

Disparate treatment is very surface level discrimination. When the head chef of a kitchen drops the “n-word” in reference to an African American employee. When someone makes a crude reference referring to women. Every side of discrimination is ugly, but this side is loud and easily heard or seen. Though perpetrators might protest that they others “meant no harm,” their behavior is inexcusable.

What is disparate impact?

This side of discrimination has made a reputation for being “quiet.” The reason it’s known for not being overt is because it’s often in rule-books, and policy guidelines. These guidelines on the surface may seem simple and non-discriminatory but, in practice, specific targeted groups tend to not reach whatever goal or standard was set. Because the policy makers or business owners themselves may not have been aware of the discrimination present, their response to discrimination accusations might be indignant and defense. But just because no harm was intended, doesn’t mean no harm was yielded. Disparate impact can spring up as early as the screening process.

The difficult part…

While providing evidence of disparate treatment might prove to be easier, disparate impact can be more difficult. Disparate treatment can be evident in a single instance, but impact can require more proof to show causation.

Discrimination has a storied history, and unfortunately that history deals with unkind words and unkind treatment within the workplace. Progress is still pushing forward on this easy to spot but difficult to subdue subject area. Disparate treatment may rear its ugly head in many locations, but it is also important to look for disparate impact. If you feel as though you are facing discrimination in the workplace, contact a legal professional who can advocate you in this trying time.

A recent case involving the Equal Employment Opportunity Commission (EEOC) highlights this stubborn problem. A female worker at a patio screen door fabrication center in Corsicana, Texas, accused her production manager and another company official of physically and verbally harassing her. That included acts of “physical aggression” and intimidation. Now the company, G2 Corporation, is agreeing to take action.

According to the EEOC, G2 Corporation will fire the production manager and pay $55,000 in damages to the female employee as part of a five-year consent decree settling the lawsuit. G2 also committed to providing sex discrimination training to employees and reporting future complaints to EEOC.

The prevalence of sex discrimination in Texas

The case involving the female worker at the fabrication center is just one of many sex discrimination charges from Texas. EEOC statistics show in 2018, there were 2,347 sex discrimination allegations in the state. That number accounted for 31.4% of all charges from the state that year, and represented the most common type of complaint outside of retaliation, coming in slightly higher than complaints based on race or disability.

What qualifies as sex discrimination? Any unfavorable treatment of an employee or applicant based solely on their sex. That includes, but is not limited to:

• Unwelcome sexual advances
• Firing, demoting or not promoting someone because of their sex
• Refusing to hire someone because of their sex
• Verbal or physical harassment
• Paying someone less because of their sex

According to the EEOC, “isolated incidents” or offhand comments are not in and of themselves sex discrimination. However, when the behavior is so frequent and incessant that the workplace becomes hostile, or if it leads to unfavorable treatment of an employee because of their sex, that is when it becomes discrimination.

Facing discrimination in the workplace is not only unfair, it can be emotionally challenging, with the behavior even damaging a person’s sense of self-worth. While pursuing a lawsuit may sound daunting, it may be the best way to try to receive compensation for what you’ve endured, while potentially helping to prevent the behavior from happening to others in the future.