When it comes to discrimination, an employer wants to do the right thing while still retaining the freedom to manage its employees. An employer wants to run its business without a government agency or the courts micromanaging or second-guessing its employment decisions. The shear scope of federal and state employment discrimination laws may even overwhelm the most well intentioned employer. Nonetheless, an employer can limit liability under employment discrimination laws simply by letting business factors guide decision-making and by ensuring that an employee has the ability to communicate concerns to management effectively. The Misra Legal Group routinely assists clients to limit their possible exposure to liability for employment discrimination by developing appropriate employment policies, by advising clients through the decision-making process, and by training supervisors on employment discrimination laws.
Employment discrimination laws expose employers with 15 or more employees to claims either for failing to maintain a workplace free of harassment or for an adverse employment action. Notably, almost every employee falls within at least one protected class. Under Texas and federal law, employees with personal characteristics which place them in one of the following protected classes have standing to assert claims for employment discrimination:
- National origin
- Age 40 years or older
- Veteran status
Types of Employment Discrimination Claims
The courts have interpreted Texas and federal employment discrimination law to provide several distinct types of employment discrimination claims:
- Hostile work environment The employee experienced harassment because of membership in the protected class which was so severe and pervasive that it affected a term, condition, or privilege of employment.
- Disparate treatment The employee experienced an adverse employment action that similarly situated employees outside the protected class did not.
- Disparate impact The employee experienced an adverse employment action from the application of a neutral employment policy that disproportionately impacts the protected class.
- Retaliation The employee experienced an adverse employment action because the employee opposed a discriminatory practice, filed a charge or complaint, or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.
The Administrative Process
Texas and federal law provide an administrative process which an employee must complete before bringing a claim in state or federal court for employment discrimination. The employee must file a charge of discrimination with the Texas Workforce Commission Civil Rights Division or the U.S. Equal Employment Opportunity Commission, and the employer must file a written response. The administrative agency then makes a determination of whether to pursue a claim in court on behalf of the employee or whether to dismiss the charge and permit the employee to pursue the claim individually.
Generally, the administrative agency will pursue the claim in court on the employee's behalf only if the charge meets policy goal that the agency has established. For example, if the agency has decided to highlight age discrimination claims during a given year, it may forego a sex discrimination claim even if it concludes that the claim has merit. However, if an agency concludes that there is no merit to an employee's charge, it will still issue a right to sue letter, and the employee may pursue the claim in court individually.
In short, although the employer may incur defense costs in responding to a charge of discrimination, the employer can use the administrative process as an opportunity to understand the factual allegations underlying the employee's legal claim sooner than later. Armed with these facts, the employer can better gauge and manager the risk of legal liability for the employee's particular claim. The employer can also determine if the circumstances giving rise to the employee's claim warrant any change in employment policies or the decision-making process.
Limiting Exposure to Claims for Hostile Work Environment
While an employer has an obligation to maintain a workplace free of harassment, the courts have recognized that an employer cannot observe every interaction between two coworkers. As a result, the courts have developed an affirmative defense for employers to limit exposure to liability for a hostile work environment. To assert this defense, an employer must maintain a policy regarding harassment and a procedure for receiving and investigating harassment complaints. If an employee pursues a claim in court, alleging harassment by a coworker, the employer can argue that the employee had notice of the policy and the procedure but unreasonably failed to use them. If the employer establishes this by a preponderance of the evidence, the court could dismiss the employee's claim with prejudice.
However, if the employee alleges harassment by a supervisor, the employer cannot rely on this affirmative defense. The law considers the acts of a supervisor to be the acts of the employer. Because of this legal standard, an employer should strongly consider providing regular training to supervisors regarding employment discrimination laws and its own policy and procedure as a tool to limit exposure to claims for hostile work environment.
Limiting Exposure to Other Employment Discrimination Claims
The other employment discrimination claims disparate treatment, disparate impact, and retaliation rely on an allegation of an adverse employment action. Almost any decision in the employment relationship which harms the employee can form the basis for an allegation of an adverse employment action, including:
Once an employee can allege an adverse employment action, this opens the door to the employment discrimination claims outlined above. Even in the absence of any allegations of direct evidence of discrimination for example, an alleged admission by a supervisor of discriminatory intent an employee can rely on allegations of circumstantial evidence to present a claim. Because the employee bears a relatively easy burden to present a claim, the courts have developed a defense for employers to limit exposure to liability for adverse employment decisions. An employer must simply articulate a legitimate business reason for making the adverse employment decision. Ideally, the employer would have documentary evidence to support this legitimate business reason and have the necessary policies and procedures to show that an individual decision-maker did not have the discretion to allow discriminatory intent to cloud the decision-making process.
If your business needs to develop policies regarding employment discrimination, assistance in making employment decisions, advice in maintaining a complaint procedure, training for supervisors on employment discrimination laws, call The Misra Legal Group.