What Constitutes Discrimination?
The Civil Rights Act of 1964 and subsequent national legislation addressed the issue of discrimination in the workplace as it regards employees’ race, color, religion, sex (including pregnancy), age (40 and above), disability, genetic information, or national origin. In summer 2020, the U.S. Supreme Court ruled that the term “sex” includes sexual orientation and gender identity.
Federal law also protects against harassment, which includes threatening, insulting, berating, or cursing out an employee, whether in public or private. The City of Houston and the State of Texas also maintain strong anti-discrimination and anti-harassment laws and regulations and enforce them vigorously.
Prohibited Conduct in the Workplace
Discrimination is prohibited in every aspect of employment including:
- Hiring - Such as job advertisements, recruiting practices, and background checks.
- Conditions of Employment - Such as job payment, opportunities for advancement, training, and reasonable accommodations.
- Termination - Such as constructive discharge, wrongful termination, or retaliation.
Discrimination doesn’t necessarily have to be intentional. Rather, the law prohibits employers from having any policies or practices that even where neutral on the surface, have a disproportionately negative effect on applicants or employees of a protected class.
According to the EEOC, retaliation is the most common complaint received. When you file a job discrimination complaint or lawsuit or participate in an investigation or lawsuit, you are protected against retaliation regardless of whether it is determined that discrimination existed.
Direct evidence of discrimination, such as an employer stating that the reason for your termination is because you are near retirement and they want to have a younger perspective, can be hard to come by. Therefore, most evidence of discrimination is circumstantial and will need to be demonstrated.
One way to demonstrate discrimination is to show several of the following:
- You are a member of a protected class
- You are qualified for the job
- Your employer took an adverse action against you
- You were replaced by a person who is not in a protected class
- You were treated differently than a similarly situated person who is not in your protected class
- Managers or supervisors regularly make rude or derogatory comments directed at your protected class
- Your manager or supervisor violated well-established company policy in the way they treated you
- Workplace policies are such that individuals in a protected class are not afforded the same benefits and opportunities of individuals not in a protected class
The circumstances of discrimination are unique to the individual and vary greatly by case. An experienced employment law attorney can help you to build a sustainable case and help you fight for the justice you deserve.