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. The number of employees that an employer must have in order to be governed by the statutes against Sex and Gender discrimination are discussed below.
When is Discrimination Illegal?**
Discrimination is illegal when it is based on a “Protected Class” or “Protected Classification.” Protected classes include, but are not limited to, a person’s Sex (Male, Female, or Non-Binary), Sexual Orientation, Sexual Preference, and Gender Identity). A nonexclusive list of some of the other types of discrimination involving Protected Classes can be found on our Discrimination in General page.
What Statutes Make Sex Discrimination, Sexual Orientation Discrimination, Sexual Preference Discrimination, Gender Identity Discrimination, and/or LGBTQ Discrimination Illegal?** Is it Illegal to Discriminate Against an Employee Because they are Male, Female, Gay, Lesbian, Bisexual and/or Transgendered?
Title VII and the Texas Labor Code protect male, female, lesbian, gay, bisexual, transgendered, and LGBTQ employees and applicants from employment discrimination based their sex, sexual preference, sexual orientation, and gender identity. Sex Discrimination includes claims of discrimination because someone is male, female, gay, lesbian, bisexual, and transgendered. Sex Discrimination also includes claims of sexual harassment and a hostile work environment against their employer as discussed in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page. Generally, except for sexual harassment claims brought under the Texas Labor Code which 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 specific 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.
What Conduct May Not be Unlawful or Illegal Discrimination Based on Sex, Sexual Preference, Sexual Orientation, and Gender Identity?**
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 to be 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 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.
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.” Differential and Disparate Treatment is discussed below. For Harassment and Hostile Work Environments, Please visit our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment Page.
What is Differential or Disparate Treatment?**
Differential and Disparate Treatment occurs when an employer treats an employee differently from other employees outside of the employee’s Protected Class. 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?**
What constitutes an Adverse Employment Action has been the subject of much debate. Depending the circumstances, the following may constitute an 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?**
There are two ways that an employee can prove that an employer discriminated against the employee based on Differential or Disparate Treatment:
Direct Evidence of Discrimination.** Direct evidence of discrimination is evidence that, if believed, proves the fact of discriminatory intent without inference or presumption. Direct evidence of discrimination is usually found where an employer admits to the employee or someone else, verbally or in writing, that their intent or motive is to take an Adverse Employment Action (described above) against an employee because the employee is a member of a Protected Class. Example: The CEO of a Corporation said, “no Indians will ever work at this company.”
Circumstantial Evidence (the Burden Shifting Analysis).** Courts recognize that direct evidence of discrimination is rare. Accordingly, they developed a system whereby an employee may prove discrimination using “circumstantial evidence.” Circumstantial evidence is another form of evidence which relies on inferences to establish discrimination. There are several different methods of establishing a case of discrimination based on circumstantial evidence, and some methods are unique to the type of discrimination complained of. The following, are the most common methods, which may or may not be applicable depending on the circumstances of each case:
- Disparate Treatment Method.** Using the Disparate Treatment method, an employee may prove discrimination through circumstantial evidence by proving that the employee: (1) was a member of a Protected Class; (2) was qualified for their position; (3) suffered an Adverse Employment Action (described above); and (4) other similarly situated employees outside of the Protected Class were treated more favorably under nearly identical circumstance. The terms “similarly situated employees” and “under nearly identical circumstances” make this method difficult to prove. However, if the employee successfully establishes these elements, a presumption of discrimination is created. Proving these elements is known as establishing a “Prima Facie Case” of discrimination. It is then up to the employer to produce evidence of legitimate, nondiscriminatory reasons for the Adverse Employment Action. If so, then the employee must show that the employer’s stated reasons were “pretext” or “pretextual,” meaning that they are untrue, unworthy of belief and/or made up to hide their true discriminatory intentions. If the employee is successful, the employee may win their case.
- Termination (and Failure to Hire, Failure to Promote, Demotion, Transfer or Reassignment) and Replacement Method.** Using the Termination (and also failure to hire, failure to promote, demotion, transfer or reassignment) and Replacement method, an employee may prove discrimination through circumstantial evidence by showing that the employee: (1) was a member of a protected class; (2) was qualified for their position; (3) suffered an Adverse Employment Action (failure to hire, failure to promote, demotion, transfer, reassignment or termination); and (4) was replaced by or the position was filled by someone outside of their protected class. This method is much easier to prove, and just as above, if the employee successfully establishes these elements, a presumption of discrimination aka a “Prima Facie Case” is created. The employer must again produce evidence of a legitimate, nondiscriminatory reason for the Adverse Employment Action (the failure to hire, failure to promote, demotion, transfer, reassignment or termination). If the employee successfully shows that the employer’s stated reasons were “pretext” or “pretextual,” meaning that they are untrue, unworthy of belief and/or made up to hide their true intentions, the employee may win their case.
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. 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 receive 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.
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 in claims of Harassment or a Hostile Work Environment under Title VII (Race, National Origin, Color, Sex, Sexual Preference, Sexual Orientation, Gender Identity, Religion etc.), the ADA (Disability), the ADEA (Age) or the PDA (Pregnancy) against their employer. The failure to do so, may give rise to an affirmative defense 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”).** Timely filing a Charge of Discrimination with either 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 Title VII (Race, National Origin, Color, Sex, Sexual Preference, Sexual Orientation, Gender Identity, Religion etc.), the ADA (Disability), the ADEA (Age) or 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 Exhausting Administrative Remedies.
Practically speaking, once an employee makes a complaint of discrimination or files a Charge of Discrimination, an employer should be extremely careful in how it reacts, and should immediately consult an attorney. Taking the wrong action could turn a beatable claim of discrimination into a very difficult claim of retaliation (please visit our Retaliation in General page for more information) which is significantly easier for an employee to prove. While an employee must prove that he has actually suffered discrimination to support a claim of discrimination, an employee only has to have had a “good faith reasonable belief” that he had suffered from discrimination to support a claim of retaliation for making a complaint of discrimination. The latter is much easier to prove.
Please visit our EEOC & TWC Charges of Discrimination & Representation page, for more information on Charges of Discrimination and the EEOC and TWC process.
What Damages Can an Employee Get from a Private Employer Because of Discrimination? How Much Money can an Employee Get from an Employer Because of Discrimination?**
The following types of damages may be available to an employee who wins a discrimination case depending on the facts of the case and specific statute that the employee sues under:
- Back Pay and Front Pay.** Back Pay and Front Pay compensate an employee for wages lost because of a discriminatory act. Back pay compensates the employee for wages lost up to the time of trial. Front pay compensates and employee for wages which are anticipated to be lost after trial.
- Lost Benefits.** An employee may be able to recover the value of benefits that he or she would have received if not for the employer’s discriminatory conduct.
- Compensatory Damages.** Compensatory damages are generally intangible types of damages such as emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary damages (see below). They are generally more difficult to prove and/or to determine the value of because they are intangible. An employee must establish a legally sufficient connection between the discrimination and the damages claimed. Sometimes, a medical expert may be necessary. Past and future compensatory damages may be subject to statutory caps (a maximum) on the amount that can be recovered.
- Pecuniary Damages.** Pecuniary Damages are damages which relate to economic losses, such as medical expenses and other quantifiable out-of-pocket expenses. These are usually easier to determine the value of because they can be calculated by looking at the employee’s actual expenditures. An employee must establish a legally sufficient connection between the discrimination and the damages claimed, as well as the reasonableness of the amount spent. Sometimes, an expert may also be necessary. Past pecuniary damages are not subject to caps, however, future pecuniary damages may be.
- Attorneys’ Fees & Costs.** An employer who is found to have discriminated against an employee may be ordered to pay the amount of the employee’s attorney’s fees.
- Punitive Damages.** Punitive damages may be awarded if an employer’s discrimination was committed with malice or with reckless indifference to the statutory rights the employee.
- Other Remedies.** Depending on the facts and the statute that the employer is sued under, an employee may be entitled to other remedies as well.
Does an Employee have a Duty to Mitigate (Avoid and/or Minimize) Damages?**
Yes. An employee has a duty to mitigate and/or minimize their damages. This can include searching for and not refusing other work, and/or following through with therapy or treatment to relieve mental anguish, as well as other actions depending upon the circumstances.
Is an Employer Prohibited from Retaliating Against an Employee for Making a Complaint of Discrimination, Harassment or a Hostile Work Environment?**
An employer is prohibited from unlawfully retaliating against an employee. Unlawful retaliation occurs when an employer takes a “Materially Adverse Action” against an employee for engaging in “Protected Activity” which includes, but is not limited to, making a complaint of discrimination or filing a Charge of Discrimination. A more detailed discussion of retaliation can be found on our Retaliation in General page.
Is an Employer Prohibited from Retaliating Against an Employee for Making a Complaint of Sex Discrimination, Sexual Orientation Discrimination, Sexual Preference Discrimination, Transgender Discrimination, Harassment, Sexual Harassment, or a Hostile Work Environment? What Constitutes Retaliation?**
The law prohibits an employer from taking a “Materially Adverse Action” against an employee in retaliation for engaging in “Protected Activity.” Protected Activity includes but is not limited to: opposing a discriminatory practice; reporting or complaining about discrimination internally (such as to Human Resources, an officer or manager of the company or in accordance with the company’s internal complaint procedures) or externally (such as filing a Charge of Discrimination with the EEOC or TWC); requesting a reasonable accommodation related to religion or a disability; participating, assisting, or testifying in an investigation, proceeding or hearing regarding unlawful discrimination. Some other types of Protected Activity for which retaliation is prohibited can be found on the Homepage of this website. For more information on retaliation, please see our Retaliation in General page.
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