Buzzing away in today’s workplace is the most diverse workforce in U.S. history. The benefits of a more inclusive workforce include improved productivity and the eradication of groupthink, to name a few. Also, the public, especially millennials and members of Gen Z, give greater weight to doing business, working for, or purchasing products and services from an employer with a demonstrated commitment to racial diversity, in essence putting their money where their mouth is. In short, in doing business, shopping, and weighing employment options, they “stay woke”. Woke is a concept used among members of these generations that refers to the perceived “awokenening” and sensitivity to issues concerning social and racial justice. Essentially, being woke means to be aware of social issues and considerate of them. Failing to stay woke will likely prove an expensive venture, as trillions of dollars in capital, purchasing power, and business goodwill are at stake. This is the “business case for diversity,” the term for those theories that support increasing workplace diversity on an economic basis.
As businesses and institutions pivot to meet the public’s demand for wokeness, employers must adopt workplace policies that create an accommodating atmosphere. But they must also be knowledgeable of the state and federal laws that govern an allegation of discrimination or harassment in the workplace. It may become as a surprise to some employers that an employee’s complaint of discrimination or harassment in the workplace, whether it takes the shape of a formal complaint with the U.S. Equal Employment Opportunity Commission (EEOC), a watercooler discussion, or a social media post, may be protected under the law even when the employer did not engage in any discriminatory acts or sexual harassment. An even bigger surprise can come when an employer receives notice that a prior terminated employee has filed a complaint with the EEOC or the Texas Workforce Commission alleging retaliation for complaining of or opposing discriminatory acts or sexual harassment. Knowledge of the legal framework for such complaints, and the best practices to prevent doubtful or frivolous claims of discriminatory acts or sexual harassment in the workplace, suddenly becomes vital to the management of the increasingly diverse workplace of today.
Federal laws prohibiting discrimination or sexual harassment in the workplace on the basis of color, religion, sex, and nationality originate in the late 1950s. Prompted by calls for racial equality, on September 9, 1959, President Eisenhower signed into law the Civil Rights Act of 1957 (“1957 Act”), the first civil rights act since Reconstruction. The 1957 Act established the Justice Department’s Civil Rights Section and empowered federal prosecutors to obtain a court injunction against interference with the right to vote. But it did nothing in the area of workplace discrimination. In 1964, Congress enacted, and President Johnson signed into law, a landmark amendment to the 1957 Act, itself known as the Civil Rights Act of 1964 (“1964 Act”). Title VII of the 1964 Act outlawed discrimination based on race, color, religion, sex, and national origin in the workplace. Title VII’s protections were further expanded in 2020 when the Supreme Court of the United States held that Title VII protects employees against discrimination based on gender identity and sexual orientation.
Slowly, but surely, the “business case for diversity” found a willful ally in the Congress and the federal courts, as Title VII provided victims of discrimination-based retaliation with a remedy to recover lost wages, out-of-pocket expenses, and even punitive damages for emotional harm suffered. To establish a case of retaliation under Title VII, an employee must show (1) that she engaged in activity protected by Title VII; (2) she was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. If an employee, in good faith, opposes or complains of discriminatory acts or sexual harassment in the workplace, even if they do so on behalf of a fellow employee, that employee engages in protected activity and is protected from retaliation. This applies even when an employee makes an outcry of reverse discrimination, that is discrimination against members of the majority group. Once the employee establishes these elements, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for taking adverse action against the employee. If the employer is successful in establishing a legitimate, nondiscriminatory reason, the burden shifts to the employee to demonstrate that the articulated reason was a mere pretext for unlawful discrimination. It will then usually be up to a jury to decide whether or not the employer’s acts were justified unless the employee is unable to present any evidence (either direct or circumstantial) to move forward.
Sooner than later, the individual states joined the federal efforts to legislate workplace diversity. In 1983, the Texas Legislature enacted the Texas Commission on Human Rights Act (“TCHRA”), specifically to provide for the execution of the policies of Title VII. The TCHRA and Title VII are considered by Texas courts to be analogous, meaning that the courts will generally look to Title VII case law to interpret and apply the TCHRA. Like the 1964 Act and its regulations, the TCHRA prohibits employers from engaging in retaliatory action against an employee for complaining of or opposing discriminatory acts or sexual harassment in the workplace. The elements an employee must establish to prevail under the TCHRA are identical to those under Title VII, i.e., the employee must show that: (1) she engaged in an activity protected by the TCHRA, (2) an adverse employment action occurred, and (3) there exists a causal link between the protected activity and the adverse action. The TCHRA also adopts the burden-shifting framework of Title VII case law. In addition, the TCHRA provides that an employee engages in protected activity when she “opposes a discriminatory practice,” “makes or files a charge,” “files a complaint,” or “testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.” The TCHRA also established the Texas Commission on Human Rights (TCHR), a state agency charged with investigating employee complaints of discrimination. Employees may file employment-related complaints internally with the Commission and/or externally with the Texas Workforce Commission, Civil Rights Division.
Under the 1964 Act, its implementing regulations, and the TCHRA, an employee who opposes a discriminatory practice or sexual harassment in the workplace in good faith engages in protected activity. Good faith is a factual determination taken in light of all relevant circumstances, usually by a jury. Herein lies the danger of failing to adequately handle an employee’s complaint or opposition to an employer’s act under Title VII and the TCHRA: the employee may use the complaint as a shield against adverse acts even when the employer has not engaged in any discriminatory practice or act. For example, a poorly performing employee could complain of a perceived violation of the 1964 Act or the TCHRA knowing that it could cause their employer to hesitate to take adverse action against them. In addition, the scenario could occur where a troublesome employee, after they are terminated, alleges, out of the blue, that she was terminated for opposing discrimination or sexual harassment in the workplace. In that case, even if the employer terminated or demoted based on their performance alone, it may take a costly trip to the courthouse to obtain a legal determination that the employer acted within the boundaries of the law. Even then, if the facts are sufficiently murky or on the side of the employee, it could take a full-blown trial to dispose of the employee’s claim, a nightmare for any employer. To avoid these situations, and to impress the EEOC or TCHR at the inevitable complaint hearing, employers should ensure their hiring process is free of any indication that the hiring decision will be based in any way upon race, color, religion, gender, or national origin. Employers should also base hiring and promotion decisions on job-related criteria, judge applicants and employees on qualifications and performance, not assumptions or stereotypes, and advertise job vacancies in media that are likely to be seen or heard by minority applicants. Employers should also be aware of asking potential employees about arrests, unless required by law, since the EEOC and the courts consider that to have a disparate impact on minorities–if an EEOC claim is filed, the employer must be prepared to show how the criminal record was relevant to the job in question. Importantly, employers must ensure that an employee’s complaint involving the protected classes is documented. This means taking statements of involved parties, obtaining emails and other communications, and issuing investigative findings, if necessary. Engaging in just a few of these practices is sure to impress not only the EEOC and the TCHRA, but the woke consumer.
The work that began in the 1950s is only just now bearing fruit for the workforce of today. As employers, employees, customers/consumers, and other businesses benefit from employing a diverse workforce, there will undoubtedly be a rise in complaints and litigation related to the protections against discrimination or sexual harassment in the workplace. Some of these complaints will lead to the exposure and eradication of shameful and illegal workplace discriminatory acts, and in the process move us closer to protected class workplace parity. Some of these complaints, however, will be baseless, and even influenced by suspect motives. In either situation, employers must “stay woke” to the requirements and duties imposed by the laws prohibiting discrimination or sexual harassment in the workplace.
Mario G. Perez, Associate Attorney, J. Cruz & Associates, LLC.