Think You Were Discriminated Against At Work? Expect To Wait A Year Or Longer For State To Investigate
Ashley Smith says after she left the Army she kept her military sense of discipline. At her civilian job, operating X-ray machines at a private clinic in Killeen, she often showed up early in a nicely pressed work uniform.
"I was a pretty good employee," she says. “Some people would have children [to care for], so they would ask, 'Can you come in for a couple hours?' And I would do that."
She says the clinic was understaffed and the shifts lasted 12 hours or longer, sometimes adding up to 60-hour weeks. There were no set breaks, so staffers would catch rest when they could in a space known as the "sleep room." Her supervisor encouraged the practice, she says.
"This isn't abnormal at all," Smith says, referencing media coverage of the COVID-19 pandemic. "You'll see pictures of doctors laid out on the floor, you know, because we work so much."
So she was shocked when she was fired for sleeping on the job.
"I never was written up for it," she says. "They actually even waited an entire month before they spoke to me about that incident."
Smith says she was the only employee fired for sleeping; a co-worker was reprimanded, but to her knowledge, no one else was disciplined.
Smith, who is Black, says the only difference between her and her colleagues was the color of her skin.
"I feel like it was racially motivated," she says. "I was fired for following the directions that I was given, and all my other peers, they did the same thing. But the difference was they weren't a minority like I am. And they were able to keep their job.”
Workers must follow a strict timeline if they want to report an employer for workplace discrimination. In Texas, complaints can either be filed with the federal Equal Employment Opportunity Commission or with the Texas Workforce Commission (TWC). They must be made within 180 days of an alleged incident.
Once a complaint is filed, an official investigation takes place. The TWC's Civil Rights Division handles investigations for the state.
While employees have a hard deadline for bringing a complaint, the Civil Rights Division appears to be under no such pressure to investigate.
"Essentially, we're in a holding pattern."Kell Simon, lawyer
Smith filed her complaint in 2019. Her lawyer, Kell Simon, was told this summer that it had still not been assigned an investigator and would probably not get one for "at least six months."
"Essentially, we're in a holding pattern,” he says. "That's very frustrating for somebody who believes they're being discriminated against at work to hear that their matter is not even going to be looked into for a year and a half."
Smith's situation is not unique. According to the TWC, people who file work complaints wait almost a year (340 days on average) to get an investigator assigned to their case. After that, it takes another 60 days or so, on average, for an investigation to be completed.
Many lawyers say the process often lasts even longer.
"We're talking about 16, 17 months or so to hear from an investigator,” says Shana Khader, a lawyer who represents workers for the Equal Justice Center.
Workers and their advocates say the wait makes it harder for employees to get justice. It also makes it harder for the TWC to do the job it's supposed to do.
"Anything can happen over the course of that year, a year and a half," Khader says. "Witnesses that were important, they may no longer be with the company. Records may no longer exist. People's memories are not so fresh anymore. So it can really interfere with the workers' ability to get a determination based on really the best evidence in their case."
Those who don't want to wait for the state to look into their discrimination claims have other options. After six months, workers can request a waiver allowing them to sue their employer in state court without a completed investigation.
That puts Simon's clients at a disadvantage, he says.
"When I'm representing an individual in an employment discrimination case, one of the most important bits of information that I get is how the employer is responding to the case," he says. “That's something that the Texas Workforce Commission is supposed to find out in its investigation process."
Many workers also file complaints without hiring lawyers. Attorney Shana Khader says those people rarely have the legal expertise to take their employers to court, so they are stuck waiting for the state to determine whether the law was broken.
"Folks who have the benefit of attorneys, they might have other options," she says. "But for so many people this [investigation process] is someone's best shot at actually getting some kind of redress for the harm that they suffered."
'Hitting Our Targets'
Investigating workplace discrimination is just one of the responsibilities of the Texas Workforce Commission, an agency best known for handling unemployment claims.
Earlier this year, the TWC came under fire for its inability to process the massive influx of claims related to the COVID-19 pandemic. After Smith received notice that it would be another six months before her case was investigated, Simon began to wonder if similar backlogs weren't further slowing workplace investigations.
The agency says no.
While acknowledging that cases might be taking slightly longer to assign due to a "modest" increase in workload, TWC spokesperson James Bernsen says, "the information we have is that our investigators are investigating these cases pretty rigorously and we are still hitting our targets."
If that's the case, advocates say, those targets are inadequate to protect working Texans.
Khader says it comes down to state funding.
The Civil Rights Division is "working with the resources that it has," she says. "It's just not funded sufficiently to be able to carry out robust investigations, thorough and swift investigations, on behalf of workers in Texas."
Bernsen says the agency handled 2,512 workplace discrimination "inquiries" from workers in the last fiscal year and closed 1,041 cases with a staff of "about 46" investigators.
When asked whether the agency might seek more state funding to speed investigations, Bernsen said there are no current plans to do so.
"If it was determined that full-time employees were needed, we would definitely bring that to the Legislature," he says. "That determination has not been made."
Smith lost her job at the clinic in July 2019. When reached this month, she said she had still not heard if the state had started looking into her complaint.
The process, she says, has left her feeling like she's been wronged twice: once by her employer and again by the system.
"It's very frustrating," she says. "It's very detrimental to your psyche. And it's very difficult to take as being acceptable."
Got a tip? Email Mose Buchele at email@example.com. Follow him on Twitter @mosebuchele.
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