Did you catch the news last month that Texas has joined three other states and the District of Columbia as a majority-minority state, according to population estimates released by the U.S. Census Bureau?

Hispanics are now the largest minority group in Texas. According to population estimates based on the 2000 census, about 50.2 percent of Texans are minorities.

This demographic information should cause all Texas employers to once again reassess their policies and practices to make sure they are not vulnerable to discrimination claims. Both Texas and federal law make it illegal for an employer with 15 or more employees to discriminate on the basis of race, as well as age, sex, national origin, disability, religion and other protected classifications.

While blatant racist comments and refusal to hire non-white applicants is rare these days in my experience as an employment lawyer representing Texas businesses, I still run across employers who would never consider promoting a Hispanic employee to a supervisory level. I occasionally still hear about employers who object to employees speaking Spanish to one another on their breaks.

This subtle, insidious racism can be very costly to employers, who may have to face an Equal Employment Opportunity Commission investigation, followed by a lawsuit by the aggrieved employee.

Jury Verdict Reseach, reported in 2004 that the median jury award for discrimination cases between 1997-2003 was $232,322, with racial discrimination cases coming in at about $150,000. Age discrimination cases are the most expensive, with a median jury award of $252,243. These numbers don’t even include the cost of defense, where lawyer’s fees and costs of litigation can run the employer about $100,000.

Population shifts and demographic trends often are a predictor of employment discrimination suits, so I can do a little forecasting as to where employers are going to be the most vulnerable to these kinds of cases based on changing demographic trends:

·         All the baby boomers (born between 1946-1964) have reached the age of 40, meaning they are all able to sue under the Age Discrimination in Employment Act. Any adverse employment action taken against an employee over the age of 40 runs some risk of triggering an age discrimination lawsuit, especially if the employee is replaced by someone substantially younger. This fact has to be taken into consideration in any termination decision. Additionally, promotion decisions have to be reassessed to avoid the “gray ceiling” that prefers younger employees over those of us with a few miles on the tires.

·         As a result of this aging population, the number of people with eldercare responsibilities is increasing. Estimates are that 40 million people are caring for an elderly relative. Employers who want to retain good employees must consider how this eldercare trend will affect overtime and leave policies, since most employees in this situation must use every available minute outside of work to care for the elderly person. Employers who limit their sick leave policies to an employee’s own illness only will find that fewer worthwhile employees will agree to that kind of restrictive policy. The better practice is to allow employees to use sick leave like Family and Medical Leave, for their own serious health condition or that of any other immediate family member.

·         Similarly, the number of women of childbearing age in the labor force and the number of children under five years of age were predicted by the U. S. Census Bureau in 2002 to rise during this decade. Work/life balancing will continue to be important to keeping satisfied employees on the job. Employers are going to have to find ways to allow employees opportunities to attend some child school activities and events, take off work when the children are sick and provide affordable group health care options for families.

·         Religious diversity continues to increase in the United States. Employers, even in the Panhandle of Texas, should not assume their employees are Christians. Employees of diverse religions may want different days off for holidays, dress code changes and other religious accommodations. Employers’ reluctance to recognize these needs contributed to the EEOC’s 2004 figures, which show that complaints of religious discrimination in the workplace have risen 75% in the last decade. Employers have to find ways to avoid religious discrimination in the workplace as well as accommodate some reasonable religious practices among employees.

·         The aging population will most likely increase the disabled population, since risks of disabilities and chronic illnesses increase with age. As an employer, are you comfortable with your requirements to reasonably accommodate a physically disabled employee in your workplace? Do you know what to do when an employee confides that he has depression, bipolar disorder or another mental disability? Put good practices in place now to help disabled employees be more productive.

These issues should be considered now rather than when the employee is sitting at your desk alleging discrimination. 

Train your managers and yourself now to recognize potential employment discrimination issues and learn how to deal with them when they arise.

Write policies that will help you supervise your staff consistently and fairly, but with some flexibility for these complicated issues that most employees are facing.

Review your group health insurance policies, your retirement plan, and your leave policies to assure that your employees are able to balance their jobs and their lives. 

All of these steps will allow you to manage change, which is as inevitable as death and taxes.