Discrimination in General

Practicing for 25+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols fights against discrimination, retaliation, harassment and hostile work environments

What Non-Government, Private Employers are Governed by Employment Discrimination Laws?**

Most statutes only prohibit private employers from discriminating against employees when the employer has a certain number of employees during a given statutory time-period. However, knowledgeable and experienced attorneys may be able to work around such limitations by addressing the employee’s complaint through other causes of action and/or statutes.

What is “At-Will” Employment or an “At-Will” Employee?**

Generally, in absence of a contract, private employment in the State of Texas is considered to be “at will.”  This means that a private employer can fire an employee for almost any reason, or no reason at all.  Similarly, an employee can quit for any reason, or no reason at all.  However, there are exceptions to the “at-will” rule which have been created by state and federal statutes and common law which make it illegal to fire an employee under certain circumstances.  These include, but are not limited to situations when the motive for terminating an employee is based in discrimination, and/or other illegal factors, many of which are discussed elsewhere on this website. Please visit the Homepage for other examples.

What Type of Discrimination May be Illegal?**  What are the Applicable Discrimination Statutes?**

Discrimination is illegal when it is based on a “Protected Class” or “Protected Classification.”  Protected classes, include but are not limited to: Age (over 40), Disability (impairments meeting a certain statutory definition), Race (any), National Origin (any), Color (any), Religion (all major religions and other sincere religious beliefs), Pregnancy (as well as being a person who has given birth and any related ailments), Sex (male, female, gay lesbian, bisexual, non-binary, transexual and/or LGBTQ) and other characteristics protected by statute or common law. The following is a nonexclusive list of the most frequent types of discrimination involving Protected Classes, in no particular order, and a brief description of each:

• Age Discrimination** – The Age Discrimination in Employment Act (“ADEA”) and the Texas Labor Code (“TLC”) protect employees and applicants over the age of 40 from employment discrimination based their age. It does not offer any protection for workers younger than 40. Age discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s age as briefly discussed below and in more detail on our Sexual Harassment & Other Discriminatory Harassment & Hostile Work Environment Page.  The protections of ADEA are not available to employees or applicants of a private employer who had less than 20 employees during the required statutory time-period.
• Disability Discrimination** – The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (together “ADA”) and the Texas Labor Code protect employees from employment related disability discrimination. Under these statutes, an employee with a disability (disabled person) include someone who: (1) has physical and/or mental impairments that substantially limit major life activities; (2) has a history or record of such an impairment; and/or (3) is regarded as having such an impairment. Certain impairments which are episodic, and the effects of which can be reduced by medication or medical devices may be considered a disability. The term “substantially limits” is intended to be construed broadly, however, not all impairments amount to a disability. If an impairment does not amount to a disability, an employee may still have a claim under the ADA that they were discriminated against because the employee was “regarded as” having a disability.  This occurs when an employer engages in discriminatory conduct because of an employee’s impairment, even if that impairment does not amount to a disability, and where the impairment is not transitory and minor. An employer who refuses to make a “reasonable accommodation” to enable a disabled employee to perform their job, may also be liable for disability discrimination.  To be entitled to a reasonable accommodation, the employee either must have a physical and/or mental impairment that substantially limit major life activities or a history or record of such an impairment.  Merely being “regarded as” having a disability does not entitle an employee to an accommodation.  A reasonable accommodation is any change to adjustment to the workplace or the job that makes it possible for a disabled employee to do the job.   However, a disabled employee is not entitled to an accommodation which would be unreasonable or which would cause an undue hardship on the employer.  An employer does not have to provide any specific accommodation requested by the employee, but only has to offers an accommodation which is reasonable and accommodates the employee’s disability.  Once a request for an accommodation is received from an employee, an employer must engage in the “Interactive Process” for the purpose of determining if an accommodation is required, and, if so, what accommodation would be reasonable and appropriate. An employer’s refusal to engage in the Interactive Process may be evidence of disability discrimination.  In order to be entitled to the protections of the ADA, the employee much be “qualified” for the job.  A qualified employee is one who hold the necessary degrees, skills, and experience for the job; and who can perform its essential functions, with or without an accommodation. Disability discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s disability as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page.  The ADA and the Texas Labor Code are not available to employees of a private employer who had less than 15 employees during the required statutory time-period.  In addition to the ADA and the Texas Labor Code, employees with certain injuries and impairments may also find relief under the Family Medical Leave Act (“FMLA”) Retaliation Page and for Worker’s Compensation Retaliation Page.  Please visit those pages of this website.
• Race Discrimination** – Title VII of the Civil Rights Act of 1964 (“Title VII”), the Texas Labor Code and 42 U.S.C. §1981 (“Section 1981”) protect employees and applicants of all races from employment discrimination based their race.  This includes, but is not limited to: African Americans, Hispanics, Asians, American Indians, Pacific Islanders, Middle Easterners and persons of every other race.  Caucasians are protected from discrimination based on race.  Race discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s race as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page. The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.  However, Section 1981 may be available to employees or applicants regardless of the number of employees that the employer has.
• National Origin Discrimination** – Title VII and the Texas Labor Code protect employees and applicants of all national origins from employment discrimination based their national origin.  National Origin is technically distinct from race, however, the two concepts are often intermingled and sometimes can be indistinguishable.  National origin discrimination includes discrimination against a person because of: (1) that person’s country or region of birth, i.e., the place where they were born; (2) their ancestry, i.e., where their parents, grandparents and/or ancestors were born; (3) their ethnic group; (4) ethnic appearance; (5)  ethnic culture; (6) ethnic manner of speaking or accent; (7) religion (see below); and (8) other attributes.  Examples: A person who was discriminated against because he was born in Mexico, may have a claim for national origin discrimination.  Further, a person who was born in the United States, but who parents or Grandparents were born in Mexico, may also have a claim of national origin discrimination if that person was discriminated against because that person is of Mexican decent, even though he is a United States citizen, and may never have stepped foot in Mexico, or may never have left the United States. National origin discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s national origin as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page. The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.
• Color Discrimination** – Title VII and the Texas Labor Code protect employees and applicants of all colors from employment discrimination based their color.  Persons of any color are protected from discrimination because of their color. This includes discrimination for being black, brown, white and other color designations which some may find offensive. Color discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s color as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page. The protections of Title VII and the TLC are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.
• Religious Discrimination** – Title VII and the Texas Labor Code protect employees and applicants against discrimination based on their religion, including, Christianity, Judaism, Buddhism, Hinduism, Islam and people who have sincerely religious, ethical or moral beliefs.  Religious discrimination includes discrimination against an employee for their religious beliefs, the observance or observation of their religion, their religious practices, religious garb and grooming practices, as well as an employee’s refusal to accept or take part in the beliefs and practices of other religions.  An employer who refuses to “reasonably accommodate” an employee’s religious practices and/or beliefs, by making changes and/or adjustment to the workplace and/or the employee’s job, may be liable for religious discrimination, unless doing so would cause an undue hardship on the employer. Religious discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s religion, their religious beliefs and other practices and characteristics associated with their religion as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page. The protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during the required statutory time-period.
• Pregnancy Discrimination** – The Pregnancy Discrimination Act (“PDA”) protects female employees and applicants from employment discrimination because of their pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The PDA and the Texas Labor Code are not available to employees of a private employer who had less than 15 employees during the required statutory time-period.  Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA) and entitle the employee to protection under the ADA as well (see above).  An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).  If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee.  Pregnancy discrimination also includes claims against an employer for harassment and a hostile work environment based on the employee’s pregnancy, childbirth, or a medical condition related to pregnancy or childbirth as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page.  Also, pregnant employees, employees who have recently given birth, or employees who have suffered a medical condition related to giving birth may find additional relief under the Family Medical Leave Act (“FMLA”) Retaliation Page.  Please visit those pages of this website.
• Sex Discrimination, Sexual Orientation Discrimination and Gender Identity Discrimination** – Title VII and the Texas Labor Code protects employees and applicants from “sex discrimination.” Sex discrimination includes discrimination based an employee’s sex, sexual orientation, and gender identity.  Sex discrimination may also include claims of sexual harassment and/or a hostile work environment as briefly discussed below and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page. Generally, with the exceptions of claims for sexual harassment under the Texas Labor Code which now apply to employers with as little as one employee, the protections of Title VII and the Texas Labor Code are not available to employees or applicants of a private employer who had less than 15 employees during a given statutory time-period.  In addition, the Equal Pay Act prohibits sex-based wage discrimination between men and women who work in the same establishment, who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions.
• Other Types of Discrimination** – There are other types of illegal or unlawful discrimination which is covered by the statutes discussed above as well as others which have not been mentioned.  This list is not intended to be all inclusive.

What Conduct May Not be Unlawful or Illegal Discrimination?**

The law does not require that an employer be nice (as opposed to subjecting a person to a hostile work environment or harassment because of their Protected Class) or fair (as opposed to not treating a person of a Protected Class and persons outside that class equally) to an employee.  By itself, it is not discrimination for an employer, manager, supervisor or coworker to be mean, unfriendly, insensitive, rude, have unrealistic or impossible expectations, not give proper direction, not give credit for or criticize an employee’s work, give bad or inaccurate reviews, not pay what an employee believes they are worth, discipline or terminate an employee for reasons which are inaccurate or even abusive, if such conduct is not motivated by discrimination because of an employee’s Protected Classifications, or other illegal factors.  Such things, when unrelated to discrimination based on an employee’s protected class (or other illegal factors), may be considered “ordinary tribulations of the work place.”  If a manager is extremely abusive to all his subordinate employees equally, it may not be discrimination.  If a manager has a personal gripe against one employee that is unrelated to that employee’s Protected Classifications, it may not be discrimination. For instance, if a manager suspected that an employee dinged her car in the company parking lot, and treated the employee poorly or fired him because of it, even the employee did not do it, it may not be discrimination.

However, if an employer, manager, supervisor or coworker treats a person differently because of that person’s Protected Class, there may be claim of discrimination (based on “Differential Treatment” or “Disparate Treatment”) if the difference in treatment is combined with an “Adverse Employment Action” as discussed in more detail below.  Further, if an employer, manager, supervisor or coworker subjects an employee to Harassment and a Hostile Work Environment because of their Protected Classifications, and the harassment is sufficiently “severe or pervasive,” the employee may also have a claim of discrimination as discussed below, and in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page.

When an employee establishes discrimination based their Protected Class and which involves either Differential or Disparate Treatment, or Harassment and a Hostile Work Environment, the acts described in the preceding paragraph as “ordinary tribulations of the work place” may be used as evidence to support the employee’s claim of discrimination.  Such behavior may also be evidence of other illegal conduct.  For a non-exclusive list of other illegal employment related conduct, please review the other employment related claims listed on our Homepage.

What is Wrongful Termination?**

The concept of “wrongful termination” is often misunderstood.  If an employee is terminated for reasons which were factually wrong or inaccurate, that may be consistent with the employment “at-will” rule, and, alone, may not give an employee a right to sue their employer.

However, if an employee is terminated for a reason which is in violation of state or federal statutes or common law, including, but not limited to discrimination based on Differential or Disparate Treatment, or Harassment and a Hostile Work Environment, or the other claims listed on the Homepage,  the employee may have a claim against the employer, and the fact that the employer’s reasons for terminating the employee are wrong, may be used as evidence of that discrimination, or other illegal conduct.

If, however, the reasons for an employee’s termination are factually incorrect, and the employee can prove it and that he or she was not otherwise terminated for work connected misconduct, among other factors, the employee may still be entitled to unemployment insurance benefits, depending on the circumstances.

When May an Employee Sue its Employer for Discrimination?**

Generally, to give rise to a lawsuit against an employer with the requisite number of employees, the employer must discriminate against the employee with respect to their compensation, terms, conditions or privileges of employment, because of their Protected Class.  This may occur: (1) when an employer treats an employee differently from other employees outside of the employee’s Protected Class and the employee is subject to an Adverse Employment Action (“Differential Treatment” or “Disparate Treatment”); or (2) when an employee has been subject to “Harassment or a “Hostile Work Environment” because of their Protected Class which is sufficiently “severe or pervasive.”  Each are discussed below.

1. Differential or Disparate Treatment.**

Generally, to prove illegal discrimination based on Differential or Disparate Treatment, the employee must first show that he is a member of a Protected Class and suffered an Adverse Employment Action.  Under this standard, not every difference in treatment between employees will give rise to a cause of action.  The purpose of requiring an employee to prove that they suffered and Adverse Employment Action is to avoid petty, inconsequential inequities among employees in the workplace.

What Constitutes and Adverse Employment Action?**

• If the employee is fired for illegal discrimination
• If an applicant is not hired (failure to hire) because of unlawful discrimination
• If an employee is not promoted (failure to promote) because of illegal discrimination
• If an employee is demoted (or suffered a diminishment in material responsibilities) because of unlawful discrimination
• If an employee is transferred or reassigned to an objectively worse position because of illegal discrimination
• If an employee’s salary is reduced because of unlawful discrimination
• If an employee is laid off because of illegal discrimination
• If an employee is assigned undesirable job assignments because of unlawful discrimination
• If the employee is denied training, fringe benefits, such as sick leave, vacation leave, Paid Time Off (PTO) and health insurance because of illegal discrimination
• If an employee is denied a raise, pay increase, bonus or commission because of unlawful discrimination
• If the employee’s hours are reduced because of unlawful discrimination
• If an employee is denied a reasonable workplace accommodation when providing one is required by law

How May an Employee Prove that their Employer Illegally Discriminated Against Them by Differential Treatment or Disparate Treatment?**

What are an Employer’s Defenses to a Claim of Discrimination by Differential Treatment or Disparate Treatment?**

• Generally.**  An employer may have several defenses to a claim of Differential or Disparate Treatment.  Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true.  This may also include evidence of the true motivations for the employee’s complaint of discrimination such as the employee’s misconduct and/or poor performance.  For example, an employer may argue that the employee knew his performance was unsatisfactory, and made a complaint of discrimination as a defensive maneuver to try to avoid discipline or termination.  Another defense may include the failure to “Exhaust Administrative Remedies” (discussed below).  Sometimes, the issue of whether an employee belongs in a Protected Classification can be challenged, such as whether an employee has a disability within the meaning of the ADA.  Other times, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a statutory violation.  The employer may even challenge whether the persons whom the employee claims received better treatment were appropriate for purposes of the comparison.  For example, you may not be able to compare the treatment of a CEO with that of the company’s receptionist.  Many other defenses may be available depending on the circumstances.
• Mixed Motive Defense.**  If an employee shows that discrimination based on a Protected Classification played a motivating part in an Adverse Employment Action, the employer may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed discrimination to play such a role.   If the employer is successful, the employee may only recover his or her attorney’s fees in pursuing the lawsuit.  However, if the employer fails, the employee is entitled to all other statutory damages as well.

2. Workplace Harassment and Hostile Work Environment**

How May an Employee Prove that their Employer Subjected them to a Hostile Work Environment because of their Protected Class?**

To give rise to a claim of Harassment or a Hostile Work Environment against and employer, including but not limited to Sexual Harassment, the employee must prove that: (1) they are a member of a Protected Class; (2) they were subjected to unwelcome harassment; (3) the harassment was based on his or her Protected Class; (4) the harassment affected a “term, condition, or privilege” of their employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.

For sexual harassment to be actionable, it must be “sufficiently severe or pervasive” to alter the conditions of an employee’s employment and create an abusive working environment. In determining whether an environment is hostile or abusive, Courts look at the totality of the circumstances including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Courts have also considered whether the complained of conduct undermines the plaintiff’s workplace competence. To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so.  Simple teasing, offhand comments, minor, isolated incidents that are not very serious, without more, may not constitute Harassment or a Hostile Work Environment under this standard, in some cases.

What Acts Constitute Sexual Harassment?**

Applicable federal and state law defines sexual harassment as unwanted sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature.  There are two types of Sexual Harassment: Quid Pro Quo and Hostile Work Environment:

• Quid Pro Quo.**  Quid Pro Quo refers to situations where employment decisions such as hiring, firing, or promotions are contingent upon the employee providing sexual favors. Examples of quid pro quo sexual harassment are when a supervisor threatens to fire an employee who does not submit to sexual advances or where a supervisor promises to promote an employee in exchange for sexual favors.
• Hostile Work Environment.** As discussed above, a Hostile Work Environment occurs when an employee is subjected to sexual harassment that is “sufficiently severe or pervasive” to alter the conditions of their employment and create an abusive working environment.

What Are Examples of Conduct which May Constitute Sexual Harassment or a Hostile Work Environment?**

The following is a non-exclusive list of conduct which may constitute evidence of Sexual Harassment, which if “sufficiently server or pervasive” may give rise to a claim of sex discrimination based on Sexual Harassment:

• Unwanted sexual advances;
• Offering employment benefits in exchange for sexual favors;
• Making or threatening reprisals after a negative response to sexual advances;
• Visual conduct such as leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters;
• Verbal conduct such as making or using derogatory comments, epithets, slurs, sexually explicit jokes, or comments about any employee’s body or dress;
• Verbal abuse of a sexual nature, graphic verbal commentary about an individual’s body, sexually degrading words to describe an individual, or suggestive or obscene letters, notes, or invitations;
• Physical conduct such as touching, assault, or impeding and/or blocking movements; and

Sexual harassment on the job is unlawful whether it involves co-worker harassment, harassment by a manager, or harassment by persons of the same or opposite sex.

What are the Other Types of Harassment or Hostile Work Environments?**

The law also prohibits harassment and subjecting an employee to a hostile work environment that is “sufficiently severe or pervasive” to alter the conditions of their employment and create an abusive working environment, as discussed in more detail above, because of the employee’s race, religion, color, sex, sexual orientation, gender identity, pregnancy, age, national origin, disability, and other Protected Classes.

What Are Examples of Conduct which May Constitute Other Types of Harassment or  Hostile Work Environments?**

• Verbal conduct such as threats, epithets, derogatory comments, or slurs;
• Visual conduct such as derogatory posters, photographs, cartoons, drawings, or gestures;
• Physical conduct such as assault, unwanted touching, or blocking normal movement; and
• Retaliation for reporting harassment or threatening to report harassment.
• Racist comment, homophobic comments, transphobic comments, sexist comments, ageist comments, and comments imitating or mocking a disability, etc.   

When is an Employer Liable for Sexual and Other Types of Harassment by one of its Owners or Officers, or for a Hostile Work Environment Created by one of its Owners or Officers?**

When is an Employer Liable for Sexual and Other Types of Harassment by one of its Supervisors, or for a Hostile Work Environment Created by one of its Supervisors?**

• Refusing to hire
• Termination
• Demotion or reassignment with materially different or diminished responsibilities
• Failure to Promote
• Significant decrease in benefits
• Transfer or refusing a transfer
• Reduction in hours
• Reduction in pay, salary or wages

When a supervisor’s harassment or hostile work environment does not result in “tangible employment action,” the employer may have an Affirmative Defense to such liability as discussed below.

When is an Employer Liable for Sexual and Other Types of Harassment by a Coworker, or for a Hostile Work Environment Created by a Coworker?**

What are the Defenses to a Claim of Harassment or a Hostile Work Environment?**

Generally.**  An employer may have several defenses to a claim of Harassment and a Hostile work environment.  Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true.  This may also include evidence of the true motivations for the employee’s complaint of discrimination.  For example, an employer may argue that the employee knew his performance was unsatisfactory, and made a complaint of discrimination as a defensive maneuver to try to avoid discipline or termination.  Other defenses include the failure to “Exhaust Administrative Remedies” and the “Affirmative Defense” (discussed below).  Sometimes, the issue of whether an employee belongs in a Protected Classification can be challenged, such as whether an employee has a disability within the meaning of the ADA.  Other times, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a statutory violation.  Many other defenses may be available depending on the circumstances.

• Employer’s Reasonable Care.** An employer might not be considered to have exercised reasonable care to prevent and/or promptly correct harassment and a hostile work environment if: (1) the employer failed establish, disseminate, and enforce an anti-harassment policy and complaint procedure; (2) the employer failed to take prompt, effective remedial action to correct the harassment or hostile work environment of which it is aware, or should have been aware because it was so open and pervasive, regardless of whether a complaint has been filed; and (3) the employer failed to take prompt, effective remedial action to correct harassment or a hostile work environment after receiving an employee’s complaint.
• Employee’s Failure Use of Remedies.** A victim of harassment and a hostile work environment who has not suffered a “tangible employment act,” may have a duty to avail themselves of their employer’s harassment complaint procedure, if any, and complain so that the employer may have an opportunity to remedy the harassment or hostile work environment.  Part of this duty may require the employee to cooperate in the employer’s investigation of their complaint.  However, in some circumstances an employee may be relieved of their duty to complain to the employer if: (1) there was no anti-harassment policy or complaint procedure; (2) the harassment complained of was so open and pervasive that the employer should have known of it, and thus was considered to have constructive notice of it; (3) it would be unreasonable to complain because there is strong evidence that using the complaint mechanism would result in retaliation, there were obstacles to making the complaint, and/or the complaint mechanism would not be effective, such as when the complaint procedure required the employee to complaint to the harasser.

How, to Whom and When Should an Employee Complain about Discrimination?**

• Employer’s Internal Complaint Process.**  Depending on the circumstances, an employee of a private employer may be required to complain to the employer using the employer’s internal complaint procedures in order to be successful against their employer in claims of harassment or a hostile work environment under Title VII (Race, National Origin, Color, Sex, Sexual Orientation, Gender Identity, Religion, etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy) .  The failure to do so, may give rise to an affirmative defense (discussed above) against an employee’s claim of discrimination, which may be fatal to all or part an employee’s lawsuit.
• Filing a Charge of Discrimination with the EEOC (“Exhausting Administrative Remedies”).**  The timely filing of a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”) is a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for discrimination under certain statutes, including, but not limited to: Title VII (Race, National Origin, Color, Sex, Sexual Orientation, Gender Identity, Religion, etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy). Properly filing a Charge of Discrimination and raising all of an employee’s claims of discrimination and other unlawful conduct is known as “Exhaustion of (or Exhausting) Administrative Remedies.” Discrimination claims brought under 42 U.S.C. §1981, as well as certain other statutes, are not required to be first filed with the EEOC or TWC, but are subject to the Statue of Limitations” (see below).  Accordingly, any employee who believes that they have be subjected to unlawful discrimination should consult an attorney immediately.

After receiving a Charge of Discrimination, the EEOC or the TWC will usually investigate it.  The employer will be asked to submit a Position Statement and explain why they are not guilty of discrimination, retaliation, harassment, a hostile work environment, or other illegal conduct.  Both parties may be asked questions and to submit evidence in support of their position.  The parties may be asked if they would like to mediate (discuss a settlement) the dispute.  In most cases, if the case is not settled, the EEOC and TWC will find that they are unable to conclude that discrimination, retaliation, harassment, a hostile work environment, or other illegal conduct has occurred, and issue a “Right to Sue” letter.  In rare cases, the EEOC or TWC will find that discrimination, retaliation, harassment, a hostile work environment, or other illegal conduct has occurred, and still issue a “Right to Sue” letter.  In either of these cases, the employee will have a limited number of days after receiving a Right to Sue letter to file a lawsuit in the appropriate Court. Specifically, the employee has 60 days to file a lawsuit in the appropriate state Court to pursue the appropriate state law claims (among other potential claims) after TWC issues a Right to Sue letter, and the employee will have 90 days to file a lawsuit in an appropriate federal court to pursue appropriate federal law claims (among other potential claims) after the EEOC issues a Right to Sue letter.  Further, to pursue appropriate state law claims in an appropriate state Court, the employee must also be certain to file their lawsuit within 2 years from the date that their Charge of Discrimination was filed.  In even rarer cases, the EEOC or TWC will sue on the employee’s behalf.

Practically speaking, the EEOC and TWC process, as well as the process by which the employee applies for unemployment insurance benefits, are where the parties will begin to create a record of evidence to be used in support of or against their position at trial.  Care should be taken to make sure statements and evidence are presented consistently, otherwise a party’s position may be severely weakened at trial.

Claims made under statutes or other common law causes of action that do not require that a Charge of Discrimination be filed with the EEOC or TWC all contain a “Statute of Limitations.”  A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited.  Accordingly, an attorney should always be consulted immediately without delay.