What Does The Law Say?

 

Where is the law regarding sex discrimination in employment in Texas found?

 

Texas's law prohibiting sex discrimination is found in the Texas Commission on Human Rights Act (TCHRA), codified at Tex. Labor Code § 21.001 et seq.



To whom does the TCHRA apply?

 

The TCHRA applies to all female employees in the state of Texas and their employers.



Under the TCHRA, what is illegal?

 

Under the TCHRA, your employer commits an illegal employment practice if it "fails or refuses to hire" you, discharges you, or discriminates against you in any way that effects your employment status, wages, benefits, "terms, conditions, or privileges" because you are a woman.



What is sex discrimination?

 

Any practice or policy that treats women unfairly simply because they are women constitutes sex discrimination. Such acts can either be overtly degrading to women (such as sexual harassment) or simply differential treatment toward women.



What constitutes sex discrimination under the TCHRA?

 

Under the TCHRA, any act taken against a woman "because of" or "on the basis of sex" is sex discrimination. The TCHRA also recognizes pregnancy discrimination as a form of sex discrimination.



What is an "employee" under this law?

 

An employee is any person who is employed by an employer under the TCHRA, but it does not include an elected official.



What is an "employer" under this law?

 

An "employer" covered under the TCHRA is any person with 15 or more employees, for "20 or more calendar weeks in the current or preceding calendar year." An employer can be an elected official or a branch of state or local government, even if that branch has less than 15 employees. Labor organizations (such as unions) and employment agencies are also considered employers under state law. Understand, however, that although you can file a complaint of sex discrimination against your employer (i.e. the company) under Texas law, you cannot directly file a complaint against individuals who have discriminated against you. Thus, you cannot directly file a complaint against your boss, supervisor, manager, or co-workers in their capacity as individuals, but the company as whole can be made to answer for their discriminatory acts.



Are women a "protected class"?

 

Yes, women constitute a "protected class," or a defined group, under the TCHRA. As such, the TCHRA prohibits employment discrimination against women.



Is there a federal law about sex discrimination?

 

Yes, you may be protected under several federal laws, including the Equal Pay Act and Title VII. Title VII is a federal law within the Civil Rights Act of 1964 that prohibits employment discrimination based on race, color, religion, sex, or national origin. See Federal Law pages.



How does the state law compare with federal in terms of coverage?

 

Texas law and federal law provide nearly identical protections and remedies to women. In fact, the TCHRA explicitly states, as its primary purpose, that Texas law is designed to execute the policies of federal anti-discrimination laws, and thus, Texas courts have frequently turned to federal law to interpret and implement Texas law.


One major exception, however, is that Texas does not have its own equal pay law, and thus, you may be limited to filing equal pay claims under federal law; however, existing Texas law (just like Title VII) may allow you to bring a claim of pay discrimination if you can prove your employer intended to discriminate against women by paying them less than men in the workplace.



Is it ever okay for my employer to treat or impact women differently because of their sex?

 

In some circumstances, it may be perfectly legal for your employer to treat or impact women differently. Texas law permits such practices if your employer can prove that the practice does not intentionally violate state law or if the practice is "justified by business necessity." Additionally, Texas allows gender to be a "Bona Fide Occupational Qualification" (BFOQ). In other words, your employer may be able to show that gender is a necessary qualification for a given job (i.e. a weight, height, or strength requirement). To do so, your employer must show that being a woman is both "reasonably related to the satisfactory performance" of the job and that there is a "factual basis" to believe that no woman would be able to "perform the duties of the job with safety and efficiency."



In a nutshell, what must I prove to win my case?

 

With the exception of retaliation cases where your burden will be slightly higher, you must be able to persuade the court or the jury that gender was a motivating factor behind your employer's practice, policy, or action against you — even if your employer was motivated by other additional factors.



What could my employer do to deny my allegations, and how do I respond to its denials?

 

Your employer will have an opportunity to produce evidence that it engaged in the discriminatory practice, policy, or action against you for a legal reason. For example, your employer may claim it considered gender as a Bona Fide Occupational Qualification (BFOQ), or your employer may deny that it discriminated at all by showing evidence that it treated male and female employees identically.


If your employer is silent or does not rebut your initial evidence, and if the court or jury believes your evidence, you should win the case. On the other hand, if your employer does offer evidence that it engaged in the practice, policy, or action against your for a legal, non-discriminatory reason, you will have the final burden to persuade the court to believe your side of the story.


Ultimately, you must persuade the court or jury that your gender was a motivating factor behind your employer's practice or policy — even if other factors were at play as well. Be aware, however, that under Texas law, if your employer can show that it would have engaged in the same policy or practice against you anyway, despite illegally considering your sex, your remedies may be limited to "declaratory relief, injunctive relief, and ... [certain] attorney's fees."



Does it matter when the discrimination occurred?

 

Texas enforces a very strict time limit on when a claim of sex discrimination can be filed. You must file a claim with the Texas Workforce Commission within 180 days of your employer's discriminatory conduct. However, under federal law, you have 300 days to file a claim with the Equal Employment Opportunity Commission (EEOC).



What options do I have if I my employer has fewer than 15 employees?

 

Unfortunately under Texas law, if your employer has fewer than 15 employees, your legal options are severely limited. The TCHRA makes one exception for employees working for a branch of state or local government if that branch has fewer than 15 employees. All is not lost, however:
1) You may wish to consider some non-legal solutions other women have used to confront their employers about discriminatory practices.
2) Depending on the circumstances of your case, some Texas courts have scrutinized an employer's business organization and allowed women to bring claims where the evidence shows a combination of personnel may, in fact, come to 15 or more employees. The court may find that two or more entities, for example, should be treated as a single employer if they have "a) interrelated operations; b) centralized control of labor relations; c) common management; and d) common ownership or financial control." Before you make such a conclusion yourself, however, you should consult with the Texas Workforce Commission or an attorney to determine if such an approach may be feasible.

 

Who enforces the law?

 

The TCHRA covers the duties of the Texas Workforce Commission, Civil Rights Division, formerly known as the Texas Commission on Human Rights. Under its mandate, the Commission may "receive, investigate, seek to conciliate, and pass on [to the courts] complaints alleging" sex discrimination. The Commission may also file civil actions against an employer, allegedly in violation of the TCHRA.


In recent years, four such agencies have been founded across the state: the City of Austin Human Resources Department, the City of Fort Worth: Human Relations Commissions, the City of Corpus Christi Human Resources Department, and the City of Garland Human Resources Department, all accessible at the TCHR website.



How do I file a claim of sex discrimination with Texas Workforce Commission?

 

Click here to learn about filing a claim with the Texas Workforce Commission.



If I prove my sex discrimination claim, what kind of remedies am I entitled to?

 

Click here to learn about what remedies you may be entitled to under the TCHRA.

 

 



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