Unlawful retaliation is one of the fasting growing forms of wrongful termination and, because it's easier to prove than unlawful discrimination, it is one of the biggest concerns for Texas employers. And for good reason.Understanding Unlawful Retaliation
Under federal and Texas law, an employer may not discharge or otherwise retaliate against an employee for, among other reasons:
- Complaining about workplace policies or working conditions
- Filing an EEOC charge of discrimination
- Filing a Texas Workforce Commission charge of discrimination
- Participating in an EEOC or TWC investigation
- Requesting a reasonable accommodation due to a physical or mental disability
- Reporting unlawful discrimination, harassment, or retaliation to an employer
- Participating in an employer's discrimination or sexual harassment investigation
- Filing an overtime pay complaint with the U.S. Department of Labor
- Complaining about not receiving overtime pay to an employer
- Sustaining a workplace injury covered by Workers Comp benefits
- Filing for or receiving Workers Comp benefits
- Taking or intending to take maternity leave
- Taking or intending to take FMLA leave
- Refusing to perform an illegal act that may result in a criminal penalty
- Reporting accounting abuses or illegal activity in a publicly-traded company
- Filing for personal bankruptcy
- Taking jury duty
- Complying with a valid subpoena; and
- Reporting resident care abuses of certain assisted living, nursing, and medical care institutions
To support a retaliation claim, the employer's adverse employment act must be because the employee participated in a protected activity (e.g. filed a workers comp claim, took maternity leave, asked for FMLA leave, etc). Except in rare circumstances, employees do not have protection from unlawful retaliation due to or based on personality conflicts, criticizing a supervisor, or questioning business judgment.
An important factor in proving unlawful retaliation is timing and proof that the employer's decision-maker had knowledge of the employee's protected activity at the time the termination decision was made. Courts generally infer a strong causal connection supporting unlawful retaliation if an employee is discharged only a short period of time after engaging in protected activity where an employer has knowledge. This is not the case where the employer is able to demonstrate that the company made the termination decision before the employee engaged in the protected activity.
Strong retaliation cases also generally include evidence that the employer did not discharge employees who did not engage in protected activity under substantially similar circumstances, failed to observe its company policies, and/or made derogatory comments directed at the employee's protected activity.Why Retaliation Lawsuits Scare Employers
The U.S. Supreme Court has made clear that, to prove unlawful retaliation, an employee does not need to experience a discharge, demotion, suspension without pay, reduction in pay, or loss of benefits. Instead, to establish retaliation, an employee needs to demonstrate only that--as a result of their protected activity--the individual suffered a materially adverse act that might dissuade a future employee from likewise engaging in protected activity. This means that employees who are not terminated for engaging in protected activity but nonetheless suffer some lesser materially adverse response may now present a valid retaliation claim. This may include a job reassignment, denial of training, denial of leave, assignment to a less desirable shift or duties, a suspension with pay, the filing of a retaliatory counterclaim or lawsuit against the employee, and more.What to Do If You Are Wrongfully Terminated
Dallas employment lawyer Barry Hersh dedicates a significant part of his practice exclusively to representing Texas employees who have experienced unlawful retaliation. If you believe that you're the victim of unlawful retaliation or your employer is preparing to terminate your employment in retaliation for your protected activities, complete the law firm's online inquiry form.
Practical Considerations relating to Retaliation
- Make a complaint to your manager and Human Resources that you believe that you're the subject of unlawful retaliation.
- Submit your complaint in writing. If your complaint was verbal, follow it up with an e-mail.
- Make sure that your complaint shows that the retaliation is as a result of your protected activity.
- Don't quit!
- If your employer provides you with a separation or severance agreement, don't sign it without consulting with a Dallas employment lawyer.