March 2016

Discrimination charges continue to rise in Texas

With the highest number of discrimination charges in almost every major category, Texas is the state with perhaps the greatest need for Equal Employment Opportunity (EEO) training.

A recent report from the Seyfarth Shaw law firm in Chicago shows that Texas led the nation in discrimination charges based on race or color, gender, disability, and age. Texas also finished second in religious discrimination charges and third in national origin discrimination charges. Between 2009–2014, Texas has led the nation in charges filed, averaging 9.4 percent of the nation's total each year.

State population size certainly plays a part in the high quantity of filings, but it does not exonerate Texas for its sizeable number of complaints. California does not lead in discrimination charges in any category, despite having roughly 12 million more people than Texas.

On a national scale, retaliation charges increased by five percent in 2015. The upward trend is likely because of the Supreme Court siding with the employee in each retaliation case over the last 10 years.

With the increasing number of claims, the EEOC is pushing to end this type of discrimination by proposing updated enforcement guidance on what constitutes as unlawful retaliation. The new guidance makes it easier for employees to understand what is allowed and what is illegal, and consequently encourages them to participate in employer internal investigations without fear of repercussions.

There are four elements of retaliation in the EEOC guidance:
  • Protected activity
    • A complaint or other EEO activity protected by the law occurring prior to the employer’s alleged retaliatory adverse action.
  • Adverse action
    • Any action that would deter said protected activity, such as denial of promotion, refusal to hire, denial of job benefits, demotion, suspension and discharge.
  • Causal connection
    • There has to be a connection; a materially adverse action does not violate the EEO laws unless the employer took the action because the charging party engaged in protected activity. Basically, a retaliation claim is only valid if the employee was fired for an activity protected by the law.
  • Liability
    • Employer liability requires that the retaliation was committed by someone with explicit or implicit delegated authority.

To address all legally protected groups, expanding the equal opportunity statement on applications and postings is a move TASB HR Services suggests making. A sample posting would look similar to this:

Applicants for all positions are considered without regard to race, color, sex (including pregnancy), national origin, religion, age, disability, genetic information, veteran or military status, or any other legally protected status. Additionally, the district does not discriminate against an applicant who acts to oppose such discrimination or participates in the investigation of a complaint related to a discriminating employment practice.

 Information vital to ensuring compliance in the workplace and subsequently reducing the number of discrimination charges in the state is available in the HR Library. Topics to refer to include:
In addition, Accommodating Disabilities in the Workplace, a recorded webinar is available now on the TASB HR Services website.