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Tony R. Bertolino

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What to Do If You are a Victim of Employment Discrimination
By Tony R. Bertolino   

Last edited: Tuesday, August 04, 2009
Posted: Tuesday, August 04, 2009

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While Texas is not a state that favors the employees in most situations, there are certain, well-defined reasons for which you cannot face bias from your employer. You need to know your rights and the most effective ways to assert these rights as you travel through the administrative and legal process of filing a complaint.

I am not revealing any great secret by stating that our country is in the middle of tremendously difficult economic times. The smallest businesses to the largest corporations are forced to lay off employees or close their doors altogether. It is likely that every person who is reading this article knows someone who has lost his job, or maybe even is facing this terrifying reality personally. In most instances, I am certain that the employers are taking every step possible before affecting their workforce and are careful in their decisions when employee cuts have to be made. However, there are some unfortunate instances in which bosses make personnel choices that are unfairly based on prejudice, illegal cost-cutting efforts, or pure retaliation. If you believe that you have been a victim of discrimination at your work, or have even been wrongly terminated from your position, it is important that you contact an employment law attorney immediately.

You need to know that the laws of Texas are not set up in a way that favors employees. Our state operates under the concept of “at will” employment, which essentially means that you work at the pleasure of your boss and he or she can fire you at any time. There does not need to be any reason given for your termination. However, you are protected by both Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964 , which spell out certain instances that constitute employee discrimination. According to the law, you cannot face adverse effects to your employment status for any of the following reasons:

• Your race, color, national origin, religion, sex, or age (with certain exceptions)
• Disabilities that are covered under the Americans with Disabilities Act
• Requesting unpaid leave as warranted by the Family and Medical Leave Act (FMLA)
• Reporting acts of fraud or environmental or safety violations at your place of employment
• Your contract explicitly states only certain reasons that you can be fired
• Refusing to commit an illegal act on behalf of your employer

Claims of employment discrimination have increased both in Texas and nationally over the past several years, likely due in part to the faltering economy. The Equal Employment Opportunity Commission (EEOC) in Texas investigated approximately 13,000 more complaints filed in 2008 than they did in 2007, with a total of 95,402 charges being issued against employers last year. There are several possible reasons for which the economy may be a factor in these numbers. When forced to downsize, an employer may make decisions based on bias. Also, someone who has been fired and knows that the possibility of finding another job quickly is not good will more closely examine the reasons for his termination. Finally, if a person has been dealing with unemployment for an extended period of time, he may get frustrated and think back on how his former employer may have wronged him. All of these factors, as well as the unfair discrimination that has always occurred in the workplace to some extent, are affecting the need for, and the approach of, employment law attorneys.

If you believe the discrimination you faced fits into one of the protected areas, what steps must be taken in moving forward with a complaint? As I mentioned before, your first action should be to contact an attorney to partner with you through the process. An experienced lawyer will be able to ask you the right questions to determine the strength of your case, find witness who will corroborate your story, and assist you should the case reach mediation or even the courtroom.
Once you have secured legal representation, you will want to file an official complaint with the Equal Employment Opportunity Commission (EEOC) and/or the Texas Workforce Commission Civil Rights Division. You will need to be prepared with as many details about your allegations as possible, including the reasons that your employer gave for his actions, the reasons that you believe that actions constitute discrimination, other employees who either can be a witness to the inappropriate behavior or who were clearly treated differently under similar conditions, and the specific dates on which the incident(s) occurred. If you were passed over for a promotion, why do you think you were more qualified than the person who received the job? If you received a poor performance evaluation, how can you prove that you were doing an effective job? The more substantive and detailed information that you can offer, the stronger your case will appear.

You then will be assigned an investigator who will gather as much information as possible from both you and your employer, and may attempt an initial effort at mediation to resolve the issue as quickly and as effectively as possible. If mediation is not a viable option of proves unsuccessful, the investigation will continue until one of three conclusions is reached and presented to you in the form of a “right to sue” letter ; there is cause for your complaint, there is no cause for your complaint, or there is insufficient evidence to determine either way. In any instance, you retain the right to sue your employer in state or federal court for at least ninety days after a decision is reached by the investigator. The letter you receive is simply meant to support or refute your claim of a viable case. If you do have an attorney working for you, he or she will be able to help you make the best decision concerning the future of your case.

Being treated unfairly at work or being laid off from a position you may have held for many years is always a difficult situation with which to cope. However, if you know that the reasons for the actions taken against you are based in discrimination, the situation quickly becomes much more personal and painful. While Texas is not a state that favors the employees in most situations, there are certain, well-defined reasons for which you cannot face bias from your employer. You need to know your rights and the most effective ways to assert these rights as you travel through the administrative and legal process of filing a complaint. Do not take this journey alone. You deserve the right to support your family, move forward in your career, and maintain a solid professional reputation without the ugly threat of discrimination hovering over you. Take that first step today.

Web Site: Bertolino LLP

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