Civil rights and employment

Understanding discrimination, harassment, retaliation and ADA

Civil rights are those rights considered to be natural to human beings. They are guaranteed and protected by our federal and state constitutions and by laws that have been enacted to implement them and give them more force. In addition to the constitutional prohibition against government infringement on these rights, Congress and the Texas Legislature have added legal protections against infringement of civil rights by many private employers. 

Because it has been recognized that some groups have had to deal with obstacles related to particular characteristics such as race or gender, particular laws have been passed at both the state and federal level prohibiting an employer from making important decisions, particularly important negative decisions, based on those characteristics.
It should be noted that most types of discrimination are perfectly legal and acceptable. Paying an educator with 20 years’ experience more than an educator with one year of experience is a form of discrimination—the district is making a distinction (“discriminating”) based on experience. Of course, it is accepted that it is completely acceptable to discriminate based on experience. As another example, it is also understood that a district might decide to pay more for particular a particular position, such as one that is hard to fill. Recently many districts found themselves desperate for math teachers and, as a consequence, provided an extra stipend to math teachers. Again, this was a form of discrimination— one educator received more money because of being a math teacher. But again, this was a completely legal form of discrimination. 

What is illegal discrimination?

Significant employment decisions, including decisions about hiring, assignment, reassignment, evaluations, salaries and terminations, may not be made (with rare exception) on the basis of:
  • Sex
  • National origin
  • Race
  • Color
  • Religion
  • Age (if you are 40 or older)
  • Disability 
Prior to 2020, federal law did not prohibit discrimination based on sexual orientation. However, the U.S. Supreme Court Opinion in Bostock v. Clayton County changed that; holding that the 1964 Civil Rights Act’s prohibition on discrimination based on sex also prohibited discrimination based on sexual identity or orientation. In addition, the Texas Educators’ Code of Ethics has prohibited discrimination based on sexual orientation for many years.  

As noted, not all employment decisions are significant enough to rise to the level of illegal discrimination. For instance, someone might feel that his supervisor is “less friendly” with him because of his gender, race or age. But this in itself would usually not be considered illegal discrimination unless it rose to a level where it was actually interfering with the person’s ability to do his job.

Complaints about illegal discrimination

A critical part of any illegal discrimination claim is proof. The two major types of things we look for to pursue a claim of illegal discrimination are:
  1. Comments made by a supervisor/administrator making a hiring/firing/negative employment action decision that indicate the decision was based on a protected suspect class (e.g. "I'm not going to hire you because you're too old."), and/or
  2. A strong statistical pattern indicating that employees of a certain category have been hired/not been hired/have not been promoted, etc. (e.g., an entire district has no Hispanic employees, or no employees over 40 years old). 
The courts have found that harassment on the basis of any protected classification is a form of illegal discrimination. Although sexual harassment is by far the most commonly reported form of harassment, other types of harassment are also illegal.

What is illegal harassment?

Harassment is a form of employment discrimination that violates either state or federal anti-discrimination law. The general way that the term harassment is used in our society is not the same as what the law defines to be illegal harassment. It is specifically defined as unwelcome verbal or physical conduct based on a protected class (race, color, religion, sex, national origin, disability and/or age).  Harassment becomes unlawful where:
  1. Enduring the offensive conduct is a condition of continued employment, or
  2. The conduct is pervasive or severe enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.
Offensive conduct may include but is not limited to offensive jokes, slurs, name calling, intimidation, mockery, insults, and displaying or distributing offensive objects or pictures. In considering whether harassment rises to the level of a hostile work environment, courts will look to see how frequently it occurred, whether it was physically threatening or humiliating, whether it was both objectively offensive and offensive to the individual employee, and whether it was severe or pervasive enough to interfere with the employee’s performance.

The most common form of illegal harassment we encounter is sexual harassment. Sexual harassment is unwelcome sexual advances, requests for sexual favors, or verbal or physical contact of a sexual nature when:
  1. Submission to such conduct is either implied or stated to be a term or condition of employment or a factor in the evaluation of the employee’s performance, ability to be promoted or any other component of employment.
  2. Such conduct interferes, either directly or indirectly, with an employee’s work performance by creating a hostile, offensive or intimidating environment. 

What is not illegal harassment?

The anti-discrimination statutes are not a code of general civility. The law does not prohibit meanness, simple teasing or isolated incidents. Furthermore, the law permits behavior that is not based on a protected class. That means supervisors or co-workers may legally conduct themselves as equal-opportunity jerks.

The mere fact that an employee is a member of a protected class is not enough to show that hostile treatment is discriminatory. Without evidence that the conduct is (1) either pervasive or severe and (2) based on a protected class, there is likely no claim for illegal harassment. Behavior that does not meet this description might still be considered inappropriate or unprofessional, but even that is not always true. Conduct based on a legitimate employment reason is generally acceptable. Thus, increased scrutiny, “singling out” or daily walkthroughs, while perhaps excessive, are not considered illegal and do not create a hostile work environment.

Unfortunately, the following are typically not legally actionable as hostile working conditions:
  • Harassment that is not based on illegal discrimination or retaliation (such as “playing favorites” in a way that does not affect a protected class);
  • Treatment that may be extremely offensive to the employee but would not be considered extremely offensive to a hypothetical “reasonable” person;
  • Isolated incidents or occasional discriminatory remarks;
  • General rudeness; or even
  • Hostile treatment that does not interfere with the employee’s performance.
Even statements that reveal a potentially discriminatory bias might not be sufficient evidence if they are not directly related to the hostile treatment or negative actions.   
An employer may not take an adverse employment action against an employee in retaliation for the exercise of a protected right. Employment actions that may be adverse include: discharges, demotions, refusals to hire, refusals to promote and reprimands. Generally, the courts will not get involved in disputes over actions related to room assignments, administrative duties, classroom equipment, employee recognition and teaching assignments. 
The government has also enacted laws to protect employees from retaliation for filing complaints about alleged illegal discrimination. This includes complaints brought in a district grievance procedure or filed with the Texas Commission on Human Rights or the Equal Employment Opportunity Commission. Even if it is determined that no illegal discrimination took place, the school district cannot terminate an employee for making the complaint as long as the complaint was reasonable and made in good faith.

Additionally, your employer may not retaliate against you for exercising your constitutional right to speak as a citizen on a matter of public concern unless the employer can show that your speech caused an actual serious disruption in the workplace. 
The Americans With Disabilities Act (ADA or now often ADAA as it was significantly amended by Congress in 2008) requires employers to provide reasonable accommodations to employees who suffer from a disability. The 2008 amendments significantly broadened the reach of the ADA by addressing a number of opinions by the U.S. Supreme Court that had greatly narrowed the duties the law placed on employers.

The ADA is a complex law as it has a number of significant pieces. Simplified, it requires an employer to attempt to work with an employee who has a disability to try to restructure the employee’s job so that the employee can do the job. Not all limitations that an employee might have are considered disabilities as the condition or “impairment” must “substantially limit a major life activity.” However, one of the changes made in the 2008 amendments was to greatly broaden the definition of what would be considered a “disability.” Before the amendments, a broken bone would normally not be considered a disability, so the ADA would not have applied, and an employer would have had no duty to consider accommodations. After the amendments, a broken bone normally would be considered a disability, so an employer does have a duty to consider accommodations.

In addition to being disabled, an employee must still be “qualified” before an employer is required to consider providing an accommodation. This term is tricky because there is significant interplay between it and the accommodation itself. On a basic level, to be a “qualified individual with a disability” means that an employee must be able to perform all the “essential functions” of her job, with or without reasonable accommodations. This means foremost that there are some job duties that are so necessary for the position that eliminating them entirely would not be a reasonable accommodation because it would mean the individual was no longer doing her job.

For instance: it would be virtually impossible for a teacher who could not read because of a brain injury to teach unless there was someone else available to do the actual reading. But, requiring a school district to employ someone simply to read to the disabled teacher would not likely be considered a reasonable accommodation. So, it is likely that a teacher who could not read would not be considered qualified to teach because reading is too important to eliminate entirely and requiring the district to provide a reader would not be reasonable.  
An accommodation is a change in some expectation, duty or responsibility, usually but not always relieving the employee of a duty that she cannot do because of her disability.

An example of an accommodation: Allowing an employee who would normally be expected to walk from place to place as a part of his job to use a wheelchair or crutches. It might also be to allow the employee extra time to get from place to place because he cannot move as fast in the wheelchair or on crutches.

As explained above, an employer is only required to provide a reasonable accommodation. There are many factors that go into what is reasonable, including cost, disruption and the effect it has on job performance.
The employer’s obligation is also only to provide a reasonable accommodation, not necessarily the best possible accommodation.
For instance: If an educator can no longer perform a supplemental duty due to a disability, a district may be able relieve may be relieve her of the duty (and discontinue a related stipend) as an accommodation rather than providing an assistant to help.

There are several significant aspects of the ADA and an employer’s duty to accommodate a disability:
  • Each case must be considered individually. What duties are actually essential and what accommodations are actually reasonable must be determined on a case-by-case basis.
  • Once an employer is put on notice that a possible accommodation of a disability is an issue, the employer is required to work with the employee to try and find a reasonable accommodation. The law and regulations make it clear that this is to be a true dialogue. This means that both employee and employer have a duty to be cooperative in communicating about the employee’s needs and the employer’s resources. 

The legal information provided on this website is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our online contact form