DAA(LEGAL) - EMPLOYMENT OBJECTIVES: EQUAL EMPLOYMENT OPPORTUNITY
Sovereign Immunity from Suits in Federal Court
The U.S. Constitution's Eleventh Amendment preserves sovereign immunity for states, thereby protecting such entities from suit under certain federal statutes. Bd. of Trustees v. Garrett, 531 U.S. 356 (2001) (State employees' suit in federal court to recover money damages by reason of the state's failure to comply with Title I of the ADA [prohibiting employment discrimination against persons with disabilities] was barred by the Eleventh Amendment.)
An ESC is properly considered an "arm of the state" and thus enjoys Eleventh Amendment immunity from suit in federal court. Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318 (5th Cir. 2002)
An ESC shall not fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of any of the following protected characteristics:
- Race, color, or national origin;
- Age (applies to individuals who are 40 years of age or older);
- Disability; or
- Genetic information [see DAB].
42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information)
Title VII proscribes employment practices that are overtly discriminatory (disparate treatment), as well as those that are fair in form but discriminatory in practice (disparate impact). Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)
Disparate treatment (intentional discrimination) occurs when members of a protected group have been denied the same employment, promotion, membership, or other employment opportunities as have been available to other employees or applicants. 29 C.F.R. 1607.11
Disparate impact occurs when an employer uses a particular employment practice that causes a disparate (disproportionate) impact on a protected group and the employer fails to demonstrate that the challenged practice is job-related and consistent with business necessity. 42 U.S.C. 2000e-2(k)(1)(A); Labor Code 21.115, .122
The ESC may not deny employment to, terminate the employment of, or discriminate with respect to employment against, a person who is or has been a debtor under federal bankruptcy laws solely because the bankrupt or debtor is or has been a debtor under federal bankruptcy laws; was insolvent before the commencement of a bankruptcy case or during the case but before the debtor was granted or denied a discharge; or has not paid a debt that is dischargeable in the bankruptcy case or that was discharged under the bankruptcy laws. 11 U.S.C. 525(a)
Student Loan Repayment
An ESC that issues a license may not take disciplinary action against a person based on the person's default on a student loan or breach of a student loan repayment contract or scholarship contract including by:
- Denying the person's application for a license or license renewal;
- Suspending the person's license; or
- Taking other disciplinary action against the person.
Occupations Code 56.001, .003
An ESC may take employment actions based on religion, sex, national origin, or age in those certain instances where religion, sex, national origin, or age is a bona fide occupational qualification. 42 U.S.C. 2000e–2(e); 29 U.S.C. 623(f); Labor Code 21.119
An ESC shall not print or publish any notice or advertisement relating to ESC employment that indicates any preference, limitation, specification, or discrimination based on race, color, religion, sex, disability, or national origin, unless the characteristic is a bona fide occupational qualification. 42 U.S.C. 2000e–3(b); Labor Code 21.059
Harassment of Employees
An ESC has an affirmative duty to maintain a working environment free of harassment on the basis of a protected characteristic. [See DHA] 42 U.S.C. 2000e et seq.; 29 C.F.R. 1606.8(a), 1604.11
An ESC may not discriminate against any employee or applicant for employment because the employee or applicant has opposed any unlawful, discriminatory employment practices or participated in the investigation of any complaint related to an unlawful, discriminatory employment practice. 29 U.S.C. 623(d) (ADEA); 42 U.S.C. 2000e–3(a) (Title VII); 34 C.F.R. 100.7(e) (Title VI); 34 C.F.R. 110.34 (Age Act); 42 U.S.C. 12203 (ADA); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX); Labor Code 21.055
An ESC shall post in conspicuous places upon its premises a notice setting forth the information the Equal Employment Opportunity Commission deems appropriate to effectuate the purposes of the anti-discrimination laws. 29 U.S.C. 627; 42 U.S.C. 2000e–10
Section 504 Notice
An ESC that employs 15 or more persons shall take appropriate steps to notify applicants and employees, including those with impaired vision or hearing that it does not discriminate on the basis of disability.
The notice shall state:
- That the ESC does not discriminate in employment in its programs and activities; and
- The identity of the ESC's Section 504 coordinator.
Methods of notification may include:
- Posting of notices;
- Publication in newspapers and magazines;
- Placing notices in ESC publications; and
- Distributing memoranda or other written communications.
If the ESC publishes or uses recruitment materials containing general information that it makes available to applicants or employees, it shall include in those materials a statement of its nondiscrimination policy.
34 C.F.R. 104.8
The prohibition against discrimination on the basis of age applies only to discrimination against an individual 40 years of age or older. Labor Code 21.101
Bona Fide Employee Benefit Plan
An ESC may take an employment action on the basis of age pursuant to a bona fide seniority system or a bona fide employee benefit plan. However, a bona fide employee benefit plan shall not excuse the failure to hire any individual and no such benefit plan shall require or permit the involuntary retirement of any individual because of age. 29 U.S.C. 623(f); Labor Code 21.102
An ESC may not evaluate employees by assuming or insisting that they match the stereotype associated with their group. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
The prohibition against discrimination on the basis of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. An ESC shall treat women affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes, including receipt of benefits under fringe benefit programs. 42 U.S.C. 2000e(k); 29 C.F.R. 1604.10; Labor Code 21.106
An ESC may not pay an employee at a rate less than the rate the ESC pays employees of the opposite sex for equal work on jobs the performance of which require equal skill, effort, or responsibility and which are performed under similar working conditions. This rule does not apply if the payment is pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any other factor other than sex. 29 U.S.C. 206(d) (Equal Pay Act); 34 C.F.R. 106.54 (Title IX)
The prohibition against discrimination on the basis of religion includes all aspects of religious observances and practice, as well as religious belief, unless an ESC demonstrates that it is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship to the ESC's business. "Undue hardship" means more than a de minimus (minimal) cost. 42 U.S.C. 2000e(j); 29 C.F.R. 1605.2; Labor Code 21.108
The ESC may not substantially burden an employee's free exercise of religion, unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Civ. Prac. and Rem. Code 110.003
A person employed or maintained to obtain or aid in obtaining positions for public school employees may not directly or indirectly ask about, orally or in writing, the religion or religious affiliation of anyone applying for employment in a public school of this state. A violation of this provision is a Class B misdemeanor. A person who violates this provision is subject to civil penalties. Education Code 22.901
An ESC may not discriminate against a qualified individual on the basis of disability in job application procedures, hiring, advancement, or discharge of employees, compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. 12112(a), 29 C.F.R. 1630.4(b); Labor Code 21.051
In addition, each ESC that receives assistance under the Individuals with Disabilities Education Act (IDEA) must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted by the IDEA. 34 C.F.R. 300.177(b)
Discrimination Based on Lack of Disability
The Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act do not provide a basis for a claim that an individual was subject to discrimination because of the individual's lack of a disability. 42 U.S.C. 12201(g); 29 C.F.R. 1630.4(b); Labor Code 21.005(c)
Definition of Disability
- An actual disability—physical or mental impairment [see definition, below]—that substantially limits one or more of an individual's major life activities;
- A record of having such an impairment; or
- Being regarded as having such an impairment.
An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
Regarded as Having an Impairment
An individual meets the requirement of being "regarded as having an impairment" if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
Transitory and Minor
The "regarded as" prong of the definition does not apply to impairments that are transitory or minor. A transitory impairment is one with an actual or expected duration of six months or less. The "transitory" exception does not apply to the "actual disability" or "record of disability" prongs of the definition.
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies, low-vision devices, prosthetics, hearing aids, mobility devices, oxygen therapy, assistive technology, or learned behavioral or adaptive neurological modifications.
The ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses and contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error.
42 U.S.C. 12102(1), (3), (4); 29 C.F.R. 1630.2(g), (j)(1); Labor Code 21.002; .0021
Physical or Mental Impairment
"Physical or mental impairment" means:
- Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
- Any mental or psychological disorder, such as an intellectual disability (formerly termed "mental retardation"), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
29 C.F.R 1630.2(h)
Major Life Activities
"Major life activities" include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.
"Major life activities" also include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within the body system.
42 U.S.C. 12102(2); 29 C.F.R 1630.2(i); Labor Code 21.002
"Qualified individual" means an individual who:
- Satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires; and
- With or without reasonable accommodation, can perform the essential functions of such position. Consideration shall be given to the ESC's judgment as to what functions of a job are essential. A written job description prepared before advertising or interviewing applicants for the job is evidence of the job's essential functions.
42 U.S.C. 12111(8); 29 C.F.R 1630.2(m)
An ESC is required, absent undue hardship, to make a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the "actual disability" or "record of disability" prongs. An ESC is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the "regarded as" prong. [See DBB regarding medical examinations and inquiries under the Americans with Disabilities Act] 42 U.S.C. 12112(b)(5); 29 C.F.R. 1630.2(o)(4), .9; 29 U.S.C. 794; 34 C.F.R. 104.11; Labor Code 21.128
"Reasonable accommodation" includes:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
- Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. 12111(9); 29 C.F.R. 1630.2(o); 34 C.F.R. 104.12(b)
Discrimination Based on Relationship
The ESC shall not exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social, or other relationship or association. 42 U.S.C. 12112(b)(4); 29 C.F.R. 1630.8; 34 C.F.R. 104.11
Illegal Drugs and Alcohol
The term "qualified individual with a disability" does not include any employee or applicant who is currently engaging in the illegal use of drugs, when the ESC acts on the basis of such use.
An ESC is not prohibited from conducting drug testing of employees and applicants for the illegal use of drugs or making employment decisions based on the results of such tests.
42 U.S.C. 12114(c), (d); Labor Code 21.002(6)(A) [See DHB]
The term "qualified individual with a disability" does not include an individual who is an alcoholic and whose current use of alcohol prevents the employee from performing the duties of his or her job or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others. 42 U.S.C. 12114(a); 29 U.S.C. 705(20)(C); 29 C.F.R. 1630.3(a); 28 C.F.R. 35.104; Labor Code 21.002(6)(A)
"Undue hardship" means an action requiring significant difficulty or expense when considered in light of the nature and cost of the accommodation needed, overall financial resources of the affected facility and the ESC, and other factors set out in law. 42 U.S.C. 12111(10); 29 C.F.R. 1630.2(p); Labor Code 21.002(6)(B)
It is unlawful for an ESC to use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the ESC, is shown to be job related for the position in question and is consistent with business necessity. 29 C.F.R. 1630.10(a)
Direct Threat to Health or Safety
As a qualification standard, the ESC may require that an individual not pose a direct threat to the health or safety of other individuals in the workplace. "Direct threat" means a significant risk to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation. 42 U.S.C. 12111(3); 29 C.F.R. 1630.2(r); Labor Code 21.002(6)(B)
Vision Standards and Tests
An ESC shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the ESC, is shown to be job-related for the position in question and consistent with business necessity. 42 U.S.C. 12113(c); 29 C.F.R 1630.10(b); Labor Code 21.115(b)
An ESC may refuse to assign or continue to assign an individual to a job involving food handling if the individual has an infectious or communicable disease that is transmitted to others through handling of food. 42 U.S.C. 12113(d); 29 U.S.C. 705(20)(D); 29 C.F.R. 1630.16(e); Labor Code 21.002(6)(B)
Note: The following provisions are from federal law.
An ESC that is subject to the jurisdiction of Title I of the ADA (employment discrimination) or to section 504 of the Rehabilitation Act (employment discrimination), shall comply with the reasonable accommodation requirements of those laws with respect to service animals. [See Reasonable Accommodation, above]
An ESC that is not subject to either Title I or section 504 shall comply with Title II of the ADA (discrimination by public entity). An employer that is subject to Title II shall comply with 28 C.F.R Part 35, including the requirements relating to service animals at 28 C.F.R. 35.136.
28 C.F.R. 35.140
"Service animal" means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.
The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.
The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
28 C.F.R. 35.104
An ESC shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
28 C.F.R. 35.136(i)
Note: The following provisions are from state law.
"Assistance animal" and "service animal" mean a canine that is specially trained or equipped to help a person with a disability and that is used by a person with a disability. Human Resources Code 121.002(1)
Assistance Animal Access
No person with a disability may be denied admittance to any public facility in the state because of the person's disability or may be denied the use of an assistance animal.
Regulations relating to the use of public facilities by any designated class of persons from the general public may not prohibit the use of particular public facilities by persons with disabilities who, except for their use of assistance animals, would fall within the designated class.
A service animal in training shall not be denied admittance to any public facility when accompanied by an approved trainer.
Human Resources Code 121.003(c), (e), (i)
Harassment and Harm Prohibited
A person may not assault, harass, interfere with, kill, or injure in any way, or attempt to assault, harass, interfere with, kill, or injure in any way, an assistance animal.
"Harass" means any conduct that is directed at an assistance animal that impedes or interferes with, or is intended to impede or interfere with, the animal's performance of its duties or places a person with a disability who is using an assistance animal, or a trainer who is training an assistance animal, in danger of injury.
A person is not entitled to make demands or inquiries relating to the qualifications or certifications of a service animal for purposes of admittance to a public facility except to determine the basic type of assistance provided by the service animal to a person with a disability. If a person's disability is not readily apparent, a staff member or manager of the facility may inquire about whether the service animal is required because the person has a disability and what type of work or task the service animal is trained to perform.
Human Resources Code 121.002, .003(j)–(l)
The ESC shall not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of membership in a uniformed service, performance in a uniformed service, application for uniformed service, or obligation to a uniformed service. The ESC shall not take adverse employment action or discriminate against any person who takes action to enforce protections afforded by the Uniformed Services Employment and Re-employment Rights Act (USERRA). [See also DEBB] 38 U.S.C. 4311
An ESC that receives federal financial assistance and that employs 15 or more persons shall adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504 of the Rehabilitation Act. 34 C.F.R. 104.7(b), .11
Americans with Disabilities Act
An ESC that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by the ADA. 28 C.F.R. 35.107, .140
An ESC that receives federal financial assistance shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action prohibited by Title IX. 34 C.F.R. 106.8(c); North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) [For legally referenced material relating to Title IX grievance procedures, see DHA(LEGAL).]
An ESC shall designate at least one person to coordinate its efforts to comply with Section 504 of the Rehabilitation Act. The ESC's Section 504 notification [see Section 504 Notice, above] shall also identify the responsible employee so designated. 34 C.F.R. 104.7(a), .8(a)
Americans with Disabilities Act
An ESC shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under the ADA, including any investigation of any complaint communicated to it alleging its noncompliance with the ADA or alleging any actions that would be prohibited by the ADA. The ESC shall make available to all interested individuals the name, office address, and telephone number of the employee or employees so designated. 28 C.F.R. 35.107(a)
An ESC must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under Title IX, which employee must be referred to as the "Title IX coordinator." The ESC must notify applicants for admission and employment, students, parents or legal guardians, employees, and all professional organizations holding professional agreements with the ESC, of the name or title, office address, electronic mail address, and telephone number of the employee(s) so designated. 34 C.F.R. 106.8(a)
Age Discrimination in Employment Act
An ESC shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under the Age Discrimination in Employment Act (ADEA), including investigation of any complaints that the ESC receives alleging any actions that are prohibited by the ADEA. An ESC shall notify its employees of the identity of the responsible employee by name or title, address, and telephone number. 34 C.F.R. 110.25(a), (b)