What kinds of employment discrimination are unlawful under Texas and federal employment law? This guide answers the question of how employers violate employment laws by discriminating against employees and applicants.
Protected characteristics under federal and state employment law
When people think about illegal employment discrimination, they usually think about race discrimination and sex discrimination. While those are the two most prominent forms of employment discrimination, they are not the only kinds of unlawful discrimination. Discrimination can be loosely classified in three categories: characteristic discrimination and legal right discrimination.
Characteristic discrimination involves discrimination for some characteristic of the employee and includes as protected statuses several fundamental characteristics of people. Discrimination is prohibited against certain immutable traits. As a society we want our workplaces to give equal job opportunities to people based upon performance and skill. For that reason, certain immutable traits are severely limited as the basis for employment decisions:
Color (where discrimination can occur within the same race but by skin color, such as favoring light skinned African Americans over dark skinned African Americans)
National Origin (but not citizenship/alienage)
Age (when the employee is over forty years of age)
Disability (as long as the employee/applicant can perform the essential functions of the job with or without a reasonable accommodation)
Genetic conditions (such as Huntington's Disease)
In addition to protecting employees and applicants from discrimination on the basis of these traits, the same laws prohibit retaliation against employees and applicants for opposing discrimination against themselves or others in the workplace for one of these protected statuses. That opposition can either be by informally opposing it in the workplace, such as filing a complaint with HR, or participating in formal government investigations of employment discrimination, such as filing an administrative complaint of discrimination with the EEOC or Texas Workforce Commission or assisting an investigation by the EEOC of employment discrimination.
Discrimination for exercising a protected employment right
Legal right discrimination involves several laws that prevent discrimination on the basis of a legal right an employee exercises. A few laws protect the employee's or applicant's rights tbased on something other than the traits listed above. These rights come up in a couple common cases. Under ERISA an employer may not discharge an employee to prevent them from vesting in some employee benefit, so you employer cannot fire you to prevent you from vesting in pension or 401k plan benefits. Additionally, under USERRA an employer cannot discriminate against an employee on the basis of military service and must make certain accommodations for employees who serve in the military, including the National Guard.
Employees and applicants are also protected from discrimination for asserting other legal rights where the discriminatory acts come in the form of retaliation for asserting those rights. Under ERISA an employee cannot suffer retaliation for appealing a decision by the plan administrator denying benefits. Under USERRA an employer cannot retaliate against an employee who is a service member and returns to work after service. OSHA prohibits employers from retaliating against employees who file complains of workplace hazards or participate in OSHA investigations. Worker's compensation prevents employers from retaliating against employees for filing worker's compensation claims.
The National Labor Relations Act prohibits employers from discriminating against employees who engage in protected concerted activity - joining a union or working with other employees to improve terms of employment. Government employees have certain protections from retaliation by the employing agency for exercising First Amendment rights. Employees in Texas enjoy protection from retaliation from refusing to engage in an illegal act on behalf of the employer. Sarbanes-Oxley protects employees from certain financial whistleblowing and some government employees have additional whistleblowing protections. This is not an exhaustive list of protections from retaliatory discrimination; but as you can see there are many protections for your legal rights.
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