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Major Laws Impacting the Hiring Process

 

The main thrust of all employment discrimination laws is to make it illegal for employers to treat employees or applicants adversely on the basis of something about themselves that they cannot change, or should not be expected to change. Such factors are called "immutable characteristics". For example, one cannot change one's race or color, gender, age, or national origin, cannot readily change one's disability status, and should not be expected to change one's religion, as a condition of getting or keeping a job. Below is a listing of the most important federal and Texas statutes relating to employment discrimination (see the note below*, as well as the article titled "Thresholds for Coverage Under Employment-Related Laws" in this part of the book for detailed information regarding employee counts).

 

Federal

  1. Civil Rights Act of 1964, Title VII - covers employers with at least 15 employees - protects against discrimination based upon race, color, gender, national origin, and religion - this law also started the EEOC

  2. Pregnancy Discrimination Act of 1978 (PDA) - incorporated by amendment into the Title VII statute noted above, the PDA clarifies that pregnancy and related conditions are considered to be a subset of "gender" for discrimination law purposes; the law prohibits employers from treating women with pregnancy or related conditions any less favorably than other employees who have medical conditions that place a similar limitation on their ability to, or availability for, work

  3. Age Discrimination in Employment Act of 1967 (ADEA) - covers employers with at least 20 employees - protects against discrimination based upon age against people who are age 40 or older

  4. Americans with Disabilities Act of 1990 (ADA) - covers employers with at least 15 employees - protects against discrimination based upon disabilities, the perception of disabilities, or association with people with disabilities

  5. Genetic Information Non-discrimination Act of 2009 (GINA) - covers employers with at least 15 employees - prohibits discrimination on the basis of genetic information, as well as the use, gathering, and disclosure of genetic information in the context of employment relationships

  6. Immigration Reform and Control Act of 1986 (IRCA) - discrimination protection provisions cover employers with at least 4 employees - protects against discrimination based upon national origin or citizenship - this law also started the I-9 process

  7. U.S. Bankruptcy Code, Section 525 - covers any employer - prohibits discrimination based upon bankruptcy history or bankruptcy claim filing status

  8. Civil Rights Act of 1866 (42 U.S.C. §1981) - covers all employers with at least one (1) employee or anyone who hires another person to perform any kind of work or services for pay (thus, it covers even independent contractor situations) - protects against discrimination based upon race or color (additional cautionary note: some national origin discrimination claims can be turned into race or color discrimination claims, depending upon the circumstances)

 

State

 

Every state in the United States has one or more laws prohibiting the forms of discrimination covered in the federal laws noted above. Some states add additional protected classifications such as sexual orientation, veteran status, history of filing certain types of claims, and so on. For example, Texas has the following anti-discrimination statutes:

  1. Texas Labor Code, Chapter 21 (formerly known as the Texas Commission on Human Rights Act) - covers employers with at least 15 employees - protects against discrimination based upon race, color, gender, national origin, religion, age, and disability

  2. Texas Workers' Compensation Act - anti-discrimination provisions cover all employers - protects against discrimination based upon workers' compensation claim history - although the Texas Supreme Court has ruled that this statute applies only to employees, not to applicants, discriminating against applicants based upon workers' compensation claim history will generally be viewed by the EEOC as a violation of disability discrimination laws

 

* Unless the statute that creates the employee limit also expressly states that the limit is jurisdictional, an employer with an employee count under the limit could still face liability in a claim or lawsuit unless it affirmatively shows that the limit precludes coverage in that situation - see the discussion of the Arbaugh v. Y & H Corporation case in "Other Types of Employment-Related Litigation" in the outline of employment law issues in part IV of this book.

 

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