Often Texas employees who are victims of employment discrimination lose their jobs through either the employer’s direct efforts to terminate the employee or by the employer’s indirect efforts to harass the employee until he or she feels like there is no choice but to quit (this is known as constructive termination). In most cases, employees discriminated against in a Texas workplace do not want to return.
Today’s post will discuss the basics behind reinstatement as a remedy for employment discrimination in Texas.
Why an employee might want reinstatement as a remedy to employment discrimination
It isn’t often but sometimes employees prefer reinstatement to their prior job over receiving strictly financial relief. It is unusual for the employee to desire reinstatement. Most people oppose the idea of returning to a job where the employee endured harassment and suffers a reputation as not being a team player, making waves, and so on. The usual preference is to move on, even if that means giving up higher pay or job opportunities. However, there are two key reasons why employees sometimes prefer reinstatement as a remedy for employment discrimination.
Job market in Texas
First, sometimes the job market is bad enough the employee has little other option. Today’s job market is not fantastic, even in Texas. In more rural parts of Texas the unemployment rate can be quite high. It isn’t always easy to locate new employment within weeks, or even months, after losing a job. It is even more difficult to go into the job market with your last employer not giving a favorable recommendation.
Victims of employment discrimination often find it very difficult to find any work right away; let alone trying to find work equal in pay and benefits that the last job offered. In these situations, employees often take an opportunity to return to the discriminating employer to avoid unemployment.
Unique job benefits
Second, sometimes the prior job had pay/benefits/opportunities that the employee needs or cannot find anywhere else. There can be many reasons why the employee believes a certain job is the job he or she needs. It may be that certain benefits, such as health care or schedule flexibility, are necessary for a disability or childcare. The job may pay well above what similar jobs in the area pay. The job may carry promotion opportunities or be a necessary step in a career path.
Sometimes employees see a particular job as having a value that exceeds the harm of enduring the employment discrimination. When an employee has this opinion of the lost job it is almost always the case that the employer fired the employee.
Whether reinstatement is a viable remedy for employment discrimination
Reinstatement is not always an available remedy and even when made available it is not always the best course of action. Courts are very cautious about ordering reinstatement to a position as a result of litigating the discrimination claims because it usually means removing whoever took over the job and causing harm to an innocent third party. Judges typically prefer to order the employer to pay a financial remedy so that the employer is the only one who bares the burden of its discrimination. Reinstatement is usually treated as a last resort, particularly when money will not make the employee whole for the harm caused.
Reinstatement in settlement offers
However, some employers will offer reinstatement as part of a settlement negotiation to limit their financial burden. If the employee has a strong desire to return then the employee’s attorney can try to negotiate that in a settlement. Settlement is more likely to result in reinstatement in a larger company where there are more job openings and it is easier to either place the employee in the same position under different management or place the employee in a new position with comparable pay and benefits.
In smaller companies it is harder to place distance between the perpetrator and victim. That invites a repeat of the discriminatory acts.
Considering reinstatement offers
Whether reinstatement is a good fit for an employee who suffered discrimination is highly dependent upon the particular needs of the employee, the value the employee places on that job and the discriminatory acts that occurred. It is usually a bad result to settle discrimination claims by sending the employee back into the workplace. The employee may lose the job a second time. So the probability that history will repeat itself is a key consideration.
When an employee has not had luck finding comparable employment, the employee often is eager to get back into that job but the short term benefits of returning to the job may not pan out as long term benefits. There is a high risk that the employee carries a stigma that may impair future opportunities. It commonly makes sense for employees to find a new job and obtain financial relief from the prior employer.