Note: For discrimination relating to compensation, terms, conditions, or privileges of employment, see DIA (TSBVI).
UNLAWFUL HIRING AND DISCHARGE
TSBVI 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 because of such individual’s:
- Race, color, or national origin
- Sex
- Religion
- Age (applies to individuals who are 40 years of age or older)
- Disability
- Genetic information [See Policy DAB]
Federal Law
Section 1981 of the Civil Rights Act of 1866 (Section 1981-race discrimination), 42 U.S.C. 1981;
Title VII (race, color, religion, sex, and national origin discrimination), 42 U.S.C. 2000e et seq;
Equal Pay Act of 1963 (gender discrimination in compensation), 29 USC 206(d);
Pregnancy Discrimination Act of 1978 (pregnancy), 42 U.S.C. 2000e(k);Title IX (sex or blindness discrimination by educational institutions), 20 U.S.C. 1681 et seq.;
Age Discrimination in Employment Act (ADEA), (over 40 age discrimination), 29 U.S.C. 621 et seq.;
Title 1 of the Americans with Disabilities Act, 42 U.S.C. 12100 et seq. and Section 504 of the Rehabilitation Act, 29 U.S.C. 793, 794 (disability discrimination in programs receiving federal funds);
Genetic Information Nondiscrimination Act of 2008 (GINAGNRA), 42 U.S.C. 2000ff et seq.; U.S. Const. Amend. I;
State Law
Texas Commission on Human Rights Act (TCHRA) in Labor Code 21.051, .402, (race, color, national origin, sex, religion, age, disability, genetic information);
Texas Equal Pay Act (all women employed by the State of Texas receive same pay as men for comparable work), Gov’t Code 659.001; and
Texas policy on employment of persons with disabilities, Human Resources Code 121.003(f)
DISCRIMINATORY PRACTICES
Title VII prohibits employment practices that are overtly discriminatory (intentional disparate treatment), as well as those that are fair in form but discriminatory in application to the workforce (disparate impact). Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989); 29 CFR 1607.11
Disparate Treatment
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 CFR 1607.11
Disparate Impact
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, 21.122
Limited Exception: Bona Fide Job Qualification
TSBVI 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
Employment Postings
The School shall not print or publish any notice or advertisement relating to School employment that indicates any preference, limitation, specification, or discrimination based on race, color, religion, sex, age, or national origin, unless the characteristic is a bona fide occupational qualification. 2 U.S.C. 2000e-3(b); Labor Code 21.059
HARASSMENT OF EMPLOYEES
The School has an affirmative duty to maintain a working environment free of harassment on the basis of sex, race, color, religion, age, disability, national origin, and genetic information. 42 U.S.C. 2000e et seq.; 29 CFR 1606.8(a), 1604.11; 20 CFR 1681 (Title IX) [See Policy DIA]
PROHIBITION ON RETALIATION
TSBVI may not retaliate 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); 20 CFR 1681 (Title IX); 34 CFR 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 [See Policy DIA]
NOTICES
The School shall post in places visible to employees and applicants the required notice from the Equal Employment Opportunity Commission relating to anti-discrimination laws. 29 U.S.C. 627; 42 U.S.C. 2000e-10
Section 504 Notice
TSBVI 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 School does not discriminate in employment in its programs and activities; and
- The identity of the School’s 504 coordinator.
Methods of notification may include:
- Posting of notices;
- Publication in newspapers and magazines;
- Placing notices on the website and other School publications; and
- Distributing memoranda or other written communications.
If TSBVI 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 CFR 104.8
SEX DISCRIMINATION
Gender Stereotypes
The School 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)
Gay and Transgender
The prohibition against discrimination because of sex includes discrimination on the basis of an individual being gay or transgender. Bostock v. Clayton County, Georgia, 17-1618, 2020, WL 3146686, (U.S. June 15, 2020)
Pregnancy
The prohibition against discrimination on the basis of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. The School 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 CFR 1604.10; Labor Code 21.106
Equal Pay
The School may not pay an employee at a rate less than the rate the employer 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 business related factor other than sex. 29 U.S.C. 206(d); 34 CFR 106.54; Lilly Ledbetter Fair Pay Act of 2009, 429 U.S.C. 2000a; Title IX 20 U.S.C. Section 1681(a); 34 CFR Section 106.1 et seq.
The Texas Government Code requires state agencies to compensate workers equally for equal work. “A woman who performs public service for this state is entitled to be paid the same compensation for her service as is paid to a man who performs the same kind, grade, and quantity of service, and a distinction in compensation may not be made because of sex.” Gov’t. Code 659.001
RELIGIOUS DISCRIMINATION
The prohibition against discrimination on the basis of religion includes all aspects of religious observances and practice, as well as religious belief, unless TSBVI demonstrates that it is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship to the School’s business. “Undue hardship” means more than a de minimus (minimal) cost. 42 U.S.C. 2000e(j); 29 CFR 1605.2; Labor Code 21.108
The School 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. & Rem. Code 110.003
Unlawful Inquiry into Religious Affiliation
A person employed or maintained to obtain or aid in obtaining positions for the School may not directly or indirectly ask about, orally or in writing, the religion or religious affiliation of anyone applying for employment. 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
AGE DISCRIMINATION
The prohibition against discrimination on the basis of age applies only to protect individuals 40 years or older. 29 U.S.C. 631; Labor Code 21.101
Bona Fide Employee Benefit Plan
The School 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
DISABILITY DISCRIMINATION
The School 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); Labor Code 21.051
In addition, the School must make positive efforts to employ, and advance in employment, qualified individuals with disabilities in programs assisted by the Individuals with Disabilities Education Act. 34 CFR 300.177(b)
[See DIA]
OTHER FORMS OF DISCRIMINATION
Military Service
The School 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 School shall not take adverse employment action or discriminate against any person who takes action to enforce protections afforded by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). 38 U.S.C. 4311 [See Policy DECB]
Bankruptcy Discrimination
The School may not terminate the employment of, or discriminate with respect to, employment against an individual who is, or has been, a debtor under the National Bankruptcy Act (Bankruptcy Act or Act), 11 USCA § 1 et seq., a debtor or bankrupt under the Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt:
- is or has been a debtor under the Act or a debtor or bankrupt under the Bankruptcy Act;
- was insolvent before the commencement of a case under the Act or during the case but before the grant or denial of a discharge; or
- has not paid a debt that is dischargeable in a case under the Bankruptcy Act or that was discharged under the bankruptcy laws.
11 U.S.C.A. § 525(a)
Student Loan Repayment
TSBVI may not take disciplinary action against a person based on the person’s default on a student loan or breach 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
Adopted: 2/9/79
Amended: 1/11/80, 6/14/80, 11/13/81, 1/14/83, 10/25/85, 1/23/87, 1/14/88, 9/15/88, 1/29/93, 11/19/93, 3/25/94, 11/17/95, 11/14/97, 1/28/00, 5/31/01, 3/26/02, 11/18/05, 11/20/09, 4/5/13, 4/8/16, 5/31/19, 5/28/20, 8/6/21
Reviewed: