A crucial aspect of employment law is federal and state anti-discrimination laws; they protect workers from unfair treatment in the workplace and safeguard their ability to seek justice if they are discriminated against. To complement federal statutes against workplace discrimination, Texas adopted the Texas Commission on Human Rights Act (TCHRA). According to the TCHRA, in Texas it is illegal for employers to discriminate against employees based on race, religion, gender, country of origin, age, or disability; however, workers are not explicitly protected from discrimination based on sexual orientation or gender identity. This protective void has been superseded by a Supreme Court ruling that “federal civil rights law prohibits employers from discriminating against workers on the basis of sexual orientation or gender identity.”
Disparate treatment and disparate impact, also referred to as adverse treatment and adverse impact, are forms of discrimination marked by intention. Both terms belong to the realm of employment law.
Disparate treatment, unlike its counterpoint disparate impact, is intentional discrimination against a protected class in the workplace. Workers are deliberately treated differently by employers. To successfully argue for disparate treatment in court, you must prove that:
- You’re a member of a protected class,
- Your employer knows you are a member of a protected class,
- Harm occurred, and
- Others in a similar situation were treated by employers more favorably
For example, a white employee makes a mistake in their role and is allowed to redeem themselves. But a non-white employee who makes the same mistake is immediately fired.
Frequently, this form of discrimination can be seen in the hiring and termination processes.
Disparate impact is ‘unintentional’ discrimination. When systems, procedures, or policies appear neutral but result in a disproportionally negative impact on a protected class, it is considered disparate impact. To prove disparate impact, you must prove that:
- A practice or policy has a disparate impact on a protected class,
- You are a member of that protected class,
- The harmful outcome was directly the result of the policy,
- An alternative policy would remedy the discrimination.
Despite disparate impact being unintentional, it can still be illegal. An example of disparate impact would be a policy that requires employees to be re-screened at one year, but where employers only re-screen employees over the age of 50. This would be considered age discrimination.
There are, however, certain circumstances when it is not illegal. For instance, a job that requires employees to carry heavy items may test their prospects’ ability to carry heavy boxes upstairs. A higher rate of men may pass this test than women, but it is not considered illegal discrimination due to its relevancy to the position.
Employers and employees alike should be cognizant of workplace discrimination laws and how to protect themselves respectively. Richards Rodriguez & Skeith lawyers have considerable experience with employment law and can help you prevent discrimination in your business. Contact us today to learn more.