Employment Law - Burton Law Firm based in Houston, TX

The Burton Law Firm, P.C. has over 20 years of experience in this area of the law. If you have questions about this subject please call us at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com or David Torok at david@burton-lawfirm.com .

Employment Law

What are some common types of employment discrimination?
Sexual orientation. Disability. Race. Gender. Age. National origin. Religion.
Can the victim of harassment be a woman or a man?
Yes. Also, the victim does not have to be of the opposite sex.
Who is a "harasser"?
It can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
Is the intended subject of the harassment the only victim?
No. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Can unlawful sexual harassment occur even without economic injury to or discharge of the victim?
Yes.
Under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), is it illegal to discriminate in any aspect of employment related to: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment?
Yes.
Is it legal for en employer to retaliate against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices?
No.
Is it illegal to make employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities?
Yes.
Can an employer deny employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability?
No. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Are employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation?
Yes. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
What employers does Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) cover?
All private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
What employers does the Age Discrimination in Employment Act (ADEA) cover?
All private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.
What does the Equal Pay Act (EPA) cover?
All employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.
What is th Americans with Disabilities Act (ADA)?
A federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees and state and local government employers of the same size. Section 501 of the Rehabilitation Act provides the same protections for federal employees and applicants for federal employment. Most states also have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and provide protections in addition to those available under the ADA.
What is the U.S. Equal Employment Opportunity Commission (EEOC)?
The agency of the federal government that enforces the employment provisions of the ADA.
When is a hearing impairment a disability under the ADA?
A hearing impairment is a disability under the ADA if: (1) it substantially limits a major life activity; (2) it substantially limited a major life activity in the past; or (3) the employer regarded (or treated) the individual as if his or her hearing impairment was substantially limiting.
May an employer ask questions about an applicant's medical condition or require the applicant to take a medical examination before it makes a conditional job offer?
No. An employer cannot ask an applicant questions such as: whether he has ever taken a test that revealed a hearing loss; whether he uses any assistive devices for a hearing impairment (such as a hearing aid) or has done so in the past; or whether he has any hearing loss due to an on-the-job accident or injury. However, an employer may ask all applicants whether they will need a reasonable accommodation for the application process.
May an employer request medical information about an applicant's hearing impairment that is obvious or that the applicant has disclosed?
No, the employer may not ask for an applicant's medical history, records, or other information about a hearing impairment that is obvious or that has been disclosed. However, if an employer reasonably believes that an applicant with a known hearing impairment will need a reasonable accommodation to do the job, it may ask if an accommodation is needed and, if so, what type. In addition, the employer may ask the applicant to describe or demonstrate how slhe could perform the job with or without an accommodation.
Does an applicant have to disclose his hearing impairment if it is not obvious?
No, the ADA does not require an applicant to disclose his hearing impairment to a potential employer. Nevertheless, if an applicant knows he needs a reasonable accommodation to complete the hiring process, he must disclose his hearing impairment. Under the ADA, an employer must keep confidential any medical information the applicant discloses.
What can an employer do if it learns about an applicant's hearing impairment after offering a job, but before the individual begins working and it believes that the applicant's hearing impairment may affect job performance?
If an employer becomes aware of an applicant's hearing impairment after offering the applicant a job and reasonably believes that the impairment may affect her ability to perform the job's essential functions (i.e., fundamental job duties) or to perform them safely, the employer may ask the applicant for information to determine whether he can perform the essential functions of the position with or without a reasonable accommodation and whether he would pose a "direct threat" (i.e. a significant risk of harm to himself or others that cannot be reduced through reasonable accommodation).
When may an employer ask if an impairment or other medical condition is causing performance problems?
The ADA severely restricts the circumstances under which an employer may obtain information about an employee's medical condition or require an employee to undergo a medical examination. If an employer has a reasonable belief, based on objective evidence, that an employee's medical condition is the cause ofperformance problems or may pose a direct threat to the employee or others, it may ask questions about the impairment or require a medical examination.
May an employer require a doctor's note from an employee who asks for sick leave for reasons related to an impairment?
Yes, if the employer requires all employees to provide a doctor's note to support the use of sick leave or to verify that sick leave has been used appropriately. However, the employer may not ask for more information than is needed to verify that the leave was taken for appropriate reasons.
Are there other instances when an employer may ask an employee about his hearing impairment?
Yes. When an employee requests a reasonable accommodation for a hearing disability and the disability andlor need for accommodation is not obvious, an employer may ask for reasonable documentation showing that the condition is a disability and/or that accommodation is needed.
Must an employer keep confidential any medical information it learns about an applicant or employee separate?
With exceptions, yes. The information must be kept in files separate from general personnel files and must be treated as a confidential medical record. Information about an applicant's or employee's impairment or other medical information may be disclosed only: to supervisors or managers in order to meet an employee's need for reasonable accommodation(s) or in connection with an employee's work restrictions; to first aid or safety personnel where a condition might require emergency treatment or an employee would require assistance in the event of an emergency; to government officials investigating compliance with the ADA or similar state and local laws; as needed for workers' compensation purposes; and for certain insurance purposes.
May an employer explain to co-workers that an employee is receiving a reasonable accommodation because of a disability?
No. Telling co-workers that an employee is receiving a reasonable accommodation amounts to a disclosure of confidential medical information. An employer, however, may respond to co-workers' questions by explaining that it will not discuss the situation of any employee with co-workers. Additionally, an employer may be less likely to receive questions from co-workers if its employees are educated on the requirements of EEO laws, including the ADA.
What type of accommodations may an individual with a hearing disability need?
Applicants or employees with hearing disabilities may need one or more of the following accommodations: a sign language interpreter, a TTY, text telephone, voice carry-over telephone, or captioned telephone, a telephone headset, appropriate emergency notification systems, written memos and notes, work area adjustments, assistive computer software, assistive listening devices (ALDs), augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice, communication access real-time translation (CART), which translates voice into text at real-time speeds, time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable, altering an employee's marginal job functions, reassignment to a vacant position, other modifications or adjustments that allow a qualified applicant or employee with a hearing disability to enjoy equal employment opportunities.
How should someone with a hearing disability request a reasonable accommodation?
No "magic words" are required. An applicant or employee simply has to inform his employer (verbally or in writing) that he needs an adjustment or change in the workplace or in the way things are usually done because of a hearing impairment.
May an employer request documentation when an individual with an impairment requests a reasonable accommodation?
Sometimes. When aperson's impairment is not obvious, the employer may ask the person to provide reasonable documentation showing the existence of a disability and why a reasonable accommodation is needed.
Does an employer have to provide the reasonable accommodation that an individual with a disability wants?
No. An employer has a duty to provide a reasonable accommodation that is effective to remove the workplace barrier. An accommodation is effective if it will provide an individual with a disability with an equal employment opportunity to participate in the application process, attain the same level of performance as co-workers in the same position, and enjoy the benefits and privileges of employment available to all employees.
Does an employer have to provide accommodations that would be too difficult or expensive?
An employer is not required to provide accommodations that would result in an undue hardship such as significant difficulty or expense.
Are there actions an employer is not required to take as reasonable accommodations?
Yes. An employer does not have to remove an essential job function, lower production standards, or excuse violations of conduct rules that are job-related and consistent with business necessity, even where an employee claims that the disability caused the misconduct. Additionally, employers are not required to provide employees with personal use items, such as hearing aids or similar devices that are needed both on and off the job.
Is it a reasonable accommodation for an employer to make sure that an employee wears a hearing aid or uses another mitigating measure?
No. The ADA does not require employers to monitor an employee to ensure that he uses an assistive hearing device. Nor may an employer deny an individual with a hearing disability a reasonable accommodation because the employer believes that the individual has failed to take some measure that would improve his hearing.
What kinds of reasonable accommodations are related to the "benefits and privileges" of employment?
Reasonable accommodations related to the "benefits and privileges" of employment include those accommodations that are necessary to provide an employee with a hearing disability equal access to information communicated in the workplace, the opportunity to participate in employer-sponsored events, and the opportunity for professional advancement.
When may an employer prohibit an employee with a hearing disability from doing a job because of safety concerns?
If an employee would pose a "direct threat" when working in a particular position, even with a reasonable accommodation, then an employer can prohibit him from performing that job. Any potential harm must be substantial and likely to occur.
What should an employer do when federal law prohibits it from hiring anyone with a certain level of hearing loss?
An employer has a defense to a failure-to-hire claim under the ADA if another federal law actually prohibits it from hiring someone with a hearing impairment for a particular position.
What constitutes illegal harassment under the ADA?
The ADA prohibits unwelcome conduct based on disability that is sufficiently severe or pervasive to create a hostile or abusive work environment. Acts of harassment may include verbal abuse, such as name-calling, and behavior, such as offensive graphic and written statements or physically threatening, harmful or humiliating actions. The law does not protect workers with disabilities (or any workers) from merely rude or uncivil conduct.
What should employers do to prevent and correct harassment?
Employers should make clear that they will not tolerate harassment based on a disability or on any other basis (i.e., race, color, sex, religion, national origin, or age). This can be done in a number of ways, including a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report harassment to a manager or other designated official. Finally, employers should immediately conduct a thorough investigation of any report ofharassment and take swift and appropriate corrective action.
Does the ADA prohibit retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an employment discrimination investigation, proceeding, or litigation?.
Yes.
How do I determine if a business of my size is covered by the EEO laws?
All employees, including part-time and temporary workers, are counted for purposes of determining whether an employer has a sufficient number of employees.
Are independent contractors counted as employees?
No.
Who may file a charge of discrimination with the EEOC?
Anyone who believes that his or her employment rights have been violated because of race, color, sex, religion, national origin, age, disability or because of retaliation may file a charge of discrimination with EEOC. By law, EEOC must accept the filing of a charge.
When can a charge of discrimination be filed?
In most geographic areas, a charge must be filed with EEOC within 300 days from the date of the alleged discrimination. In a very small number of areas where a state or local employment discrimination law does not apply, a charge must be filed within 180 days.
Can a small business resolve a charge without undergoing an investigation or facing a lawsuit?
Yes. EEOC has a free mediation program. The program is voluntary and all parties must agree to take part. The mediation process is also confidential. Neutral mediators provide employers and charging parties the opportunity to reach mutually agreeable solutions. If the charge filed against your company is eligible for mediation, you will be notified by the EEOC of your opportunity to take part in the mediation process. In the event that mediation does not succeed, the charge is referred for investigation.
What employment records must a business keep?
EEOC regulations require that employers keep all personnel or employment records for one year. If an employee is involuntarily terminated, hislher personnel records must be retained for one year from the date of termination. Under ADEA record keeping requirements, employers must also keep all payroll records for three years. Additionally, employers must keep on file any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or system is in effect and for at least one year after its termination. Under Fair Labor Standards Act (FLSA) recordkeeping requirements applicable to the EPA, employers must keep payroll records for at least three years. In addition, employers must keep for at least two years all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment.
What reports must small employers file with EEOC?
In addition to material that is connected to the issues raised with the investigation of a charge of discrimination, the EEOC also collects EEO- 1 Reports from some employers, regardless of whether a charge has been filed against the company.
What is an EEO- 1 ?
Employment Information Report. An EEO- I Report is filed annually and provides a breakdown of the employer's work force by race and gender. Small employers are not required to file EEO-1 reports unless they: employ 100 or more employees or employ 50 or more employees and have Federal contracts totalling $50,000 or more.
I received a charge form from the EEOC that says my business violated federal law. How can the EEOC say this before anyone has even talked to me or asked for my side of the story?
While there are a few rare exceptions, ordinarily the charge must be filed by a member of the public who has contacted EEOC and alleged that a company has discriminated against him or her. The fact that the EEOC has taken a charge does not mean that the government is accusing you of discrimination. The charging party has alleged that your company has discriminated against him or her and it is the EEOC's job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred.
How will I know if a charge of discrimination has been filed against my company?
EEOC will notify the employer within 10 days of receiving a charge. Notification normally includes a copy of the charge briefly identifying the charging party, the basis (e.g., race, religion, sex, etc.) and issue(s) (e.g., hiring, promotion, discharge, etc.) of the allegation, and the date(s) of the alleged discrimination. Ordinarily, a plain language explanation of the EEOC charge process will be included, as well as explanations of the employer's obligation to retain records pertaining to the charge and of the non-retaliation provisions of the EEOC laws. An invitation to mediate the charge may also be included in the notification package.
What can an employer expect to happen in an EEOC investigation?
After a charge is filed, you may be asked to provide a statement of position responding to the allegations in the charge. You may also be asked to provide documents or information related to the subject of the EEOC's investigation. Additionally, the EEOC may ask to visit yow worksite or to interview some of your employees. Cooperation with EEOC requests for information is helpful to the EEOC in investigating charges. When an employer refuses to provide information, or does not do so in a reasonably timely manner, the EEOC may issue a subpoena. You may retain an attorney to represent you during the EEOC's handling of the charge but you are not required to do so.
What records am I required to keep if I receive an EEOC charge?
The EEOC Notice of Charge form that you receive should explain the agency's record keeping requirements. When an EEOC charge has been filed against your company, you should retain personnel or employment records relating to the issues under investigation as a result of the charge, including those related to the charging party or other persons alleged to be aggrieved and to all other enlployees holding or seeking positions similar to that held or sought by the affected individual(s).
How long must these records be kept?
Once a charge is filed, these records must be kept until the final disposition of the charge or any lawsuit based on the charge. When a charge is not resolved after investigation, and the charging party has received a notice of right to sue, "final disposition" means the date of expiration of the 90-day statutory period within which the aggrieved person may bring suit or, where suit is brought by the charging party or the EEOC, the date on which the litigation is terminated, including any appeals.
My records are not in the format requested by the EEOC. It will be too costly and timeconsuming to comply with the request. What should I do?
Talk to the EEOC investigator before submitting information in a format different from that requested or refusing to comply altogether. Explain what business records you have and how you believe you could supply the information in a manner closely resembling the manner requested. Most of these situations can be worked out so that EEOC gets the information it needs without the employer feeling unduly burdened.
The EEOC sent me a Notice of Charge which contains very little information about a claim of discrimination. Nothing was attached and I cannot tell what this is about. What should I do?
The EEOC generally sends notice to employers that a charge has been filed within 10 days after the charge is filed. Occasionally the EEOC will give you notice of a charge without actually including a copy of the charge. When this happens, ordinarily you need do nothing more until we contact you at a later date. However, if you want more information, call the EEOC office that sent the notice and speak with the staff person assigned to handle the charge to obtain more information.
What should I do if I believe the EEOC charge filed against my company is frivolous?
You should still respond. Under the EEOC's current procedures, if the EEOC believes the charge is invalid or frivolous, it will dismiss the charge. If the charge was not dismissed by the EEOC when it was received, there is usually some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary.
What happens if a charge is dismissed by the EEOC?
If the EEOC dismisses a charge, it will not proceed further with an investigation. The charging party is notified of his or her right to file a lawsuit in court. A charging party may file a lawsuit within 90 days of receiving his or her dismissal notice. The laws also permit a charging party to choose to go to court instead of waiting for the EEOC to complete its investigation. Therefore, in some cases, the EEOC may issue a notice of right to sue upon the charging party's request.
What does the EEOC do if it determines that a violation of the law has occurred?
If the EEOC determines that there is reasonable cause to believe that discrimination occurred, a written determination and invitation to enter into conciliation discussions are issued to the parties. If conciliation efforts are not successful, the EEOC andlor the charging party may bring suit.
If my company is found to have violated the law, what could happen?
Under the EEOC-enforced laws, the remedies for unlawful discrimination include: an order to eliminate discriminatory practices; hiring, wage adjustments, promotion or reinstatement, depending upon the nature of the action taken against the individual; and monetary remedies.
What should I do to prevent retaliation against and preserve relationships with current employee charging parties?
The charge should be treated confidentially. If the charging party is a current employee, make sure no employee retaliates against the person filing the charge. Make clear to employees who file charges that their relationship with the company will not be affected. As to former employees, be sure that the EEOC filing does not affect the nature of any references given.
What are Fair Employment Practices Agencies and how do they relate to the EEOC?
There are more than 100 state and local Fair Employment Practices Agencies (FEPAs). The EEOC has cooperative relationships with all but a few of them. The EEOC and the FEPAs it works with have reached Worksharing Agreements that divide up their common workload of charges in order to avoid duplication of charge processing. Each charge of discrimination that is covered by both an EEOC-enforced statute and the FEPAs law or ordinance is dual-filed under both laws, regardless of which agency receives it. These dual-filed charges are typically investigated by only one agency. This way, employers avoid two investigations of the same matter, but the legal rights of the charging parties are still preserved under both laws.
What do I do if I get the same charge from the EEOC and also from a state or local FEP agency?
Bring the matter to the attention of both agencies and they should be able to resolve the issue.
I settled a discrimination charge that was handled by my local FEPA and received a separate dismissal notice from the EEOC. What does this mean?
Most charges are dual-filed under both state and federal law. Regardless of which agency is processing the charge, both agencies have to close their respective case files. All that is happening in this instance is that the EEOC has accepted the state agency's resolution and has closed its case.
How can I tell if a charge is dual-filed with both the EEOC and a state or local FEPA?
The top of the charge form and the notice of charge form will usually indicate whether the charge has been filed with both the EEOC and a FEPA. If there is any doubt, ask the EEOC staff person handling the charge.
When an EEOC charge is dual-filed with a FEPA, and the EEOC decides that it does not have jurisdiction or does not believe federal law is violated, is that the end of the matter?
Maybe. Some state and local FEP laws have longer charge filing periods, cover more employers (such as smaller employers than those covered by the federal anti-discrimination laws) or provide greater protections than federal law (such as laws prohibiting marital status discrimination). In such cases, the FEPA may continue to investigate the charge.
What is the Immigration Reform and Control Act and must my business comply with it?
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for an employer to hire any person who is not legally authorized to work in the United States, and it requires employers to verify the employment eligibility of all new employees.
Does IRCA also prohibit discrimination in hiring and discharge based on national origin (as does Title VII) and on citizenship status?
Yes. IRCA's anti-discrimination provisions are intended to prevent employers from attempting to coinply with the Act's work authorization requirements by discriminating against foreign-looking or foreign-sounding job applicants.
Does IRCA's anti-discrimination provisions apply to smaller employers than those covered by EEOC-enforced laws?
Yes. IRCA's national origin discrimination provisions apply to employers with between 4 and 14 employees (who would not be covered by Title VII). IRCA's citizenship discrimination provisions apply to all employers with at least 4 employees. IRCA is enforced by the U.S. Department of Justice.
What about affirmative action?
Affirmative action may be required of your company as a condition of entering into a federal contract. The EEOC has no responsibilities for the administration of affirmative action requirements. Affirmative action requirements are administered by the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).
Where can I find information about the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) is enforced by the U.S. Department of Labor. Information on this law may be found at http://www.dol.gov/esa/whd/fmla/. Complaints filed under the FMLA are handled by the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.
What is the Small Business Regulatory Enforcement Fairness Act?
The Small Business Regulatory Enforcement Fairness Act allows small businesses to comment about federal agency enforcement actions to an SBA Ombudsman.
What other federal agencies dealing with small businesses have web sites that can help me?
Small Business Administration. U.S. Business Advisor. Department of Commerce. Department of Justice. Department of Labor.

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