Texas Retaliation Laws: Employee Rights and Coverage

What is Considered Retaliation in Texas

Texas law defines retaliation as taking an adverse employment action against an employee because they have engaged in a protected activity. An adverse employment action can be anything ranging from losing a promotion, being demoted, or even being terminated. These actions must come as a result of the whistleblower or protected activity . Examples of actions that may be considered "retaliatory" under Texas law include the following:
Threatening an employee with termination or other disciplinary action if they report a violation of the law;
Terminating an employee’s position immediately after they report a violation of the law;
Reprimanding an employee immediately after they report a violation of the law;
Failing to promote or award a pay raise to an employee who reports a violation of the law;
Reassigning an employee to a less desirable position after he or she reports a violation of the law;
Failing to hire a candidate because of the proposed hire’s association with a whistleblower;
Failing to hire, promote, or award pay raises to a whistle blower’s relative; and
Discriminating against a whistle blower because of the religion, race, gender, etc.
This list is not exhaustive, and can carry serious consequences for an employer. In addition to civil lawsuits, employers may also face administrative penalties or fines.

Legal Protections of Employees

Various Texas statutes include whistleblower protections that limit an employer’s ability to retaliate against an employee or former employee who has made a report or disclosure regarding a suspected unlawful act of the employer. The most common theme in these statutes is that the employee must initiate the report or disclosure. However, the substance of the conduct motivating the report or disclosure is diverse and includes, among other things: violations of health and safety laws; violations of laws, rules or regulations relating to fraud, abuse and waste in the expenditure of federal funds; violations of laws, rules or regulations relating to environmental law, occupational safety or health; violations of laws regarding child abuse or neglect or falsification of official government records; violations of laws relating to discrimination and retaliation against employees; and violations of laws relating to solid waste disposal, waste treatment permits or emissions standards for water and air.
Some of the most significant protections these laws afford concern claims filed by employees for retaliation in taking or threatening to take an adverse employment action against them based on their report or disclosure. With regard to investigations of whistleblower complaints, the Texas whistleblower statute provides that "[a] governmental body may not suspend or terminate the employment of a public employee who reports a violation of law . . . unless the suspension or termination is in the best interest of the state or of the employee." To the extent this prohibits public employers from conducting standard investigations of a public employee based on alleged unprotected conduct, courts read this "best interest" standard narrowly, holding that it merely affords greater job security to public employees who report a violation of law in good faith, not those who engage in other unprotected conduct, or related misconduct. Similarly, the Texas Workplace Hazardous Substance Act provides protection to employees who report work hazards where the employer takes an adverse action against the employee because the employee in good faith reported the work hazard.
Ultimately, these protections place an additional burden on employers who undertake internal investigations adverse to employees who have undertaken statutory protected conduct. These statutes only limit the employer’s ability to take an adverse employment action against the employee because of their protected conduct. However, if the employer has legitimate issues to address, the employer must be careful to avoid taking any action that could be pretextual.

Bringing a Retaliation Claim

Should the aggrieved employee also feel that he or she has suffered retaliation, the process begins with filing a charge of discrimination with the Texas Workforce Commission Civil Rights Division (TWCCRD) and the federal Equal Employment Opportunity Commission (EEOC). The employee must file both charges before the TWCCRD or the two should be filed simultaneously. For claims solely involving violations of Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, or Age Discrimination in Employment Act, the filing period is also 300 days from the date the employee was retaliated against. This is not the case if the employee is pursuing a claim under the Fair Labor Standards Act.
The TWCCRD serves as a clearing house for the EEOC, which has jurisdiction over federal anti-discrimination laws. However, not all claims require an employee to file a charge with the EEOC or TWCCRD. Employees alleging retaliation in violation of the Fair Labor Standards Act, as well as those making state law claims, can skip this step and simply file a civil lawsuit. Unlike Title VII claims, the statutes of limitations are substantially shorter for FLSA, Texas Labor Code, and common "whistleblower" law suits.

Employer Defenses to Retaliation Claims

In addition to the burden of proof on the employee, there are numerous defenses that employers in Texas often assert in retaliation cases. One of the most common defense is that the employee has not shown that they engaged in a protected activity. This defense closely relates to the analysis of whether an employee’s protected activity was the "but for" cause of adverse employment action because even if the employee has shown that they engaged in protected activity, the employer can assert that an independent intervening factor motivated its employment decision.
Another common defense to a retaliation claim in Texas is that the employer had a legitimate, non-retaliatory reason for the adverse employment action. Under this affirmative defense, the employer has the burden of production to show that it made its employment decision "for a legitimate, non-retaliatory reason . . . for a reason that cannot be made action for retaliation . . . [s]o long as it was legal or legal." An employee can rebut this affirmative defense only by showing that the employer’s proffered reason is unworthy of belief. Another way that an employer can rebut a retaliation claim in Texas is to prove that the employee was not terminated under adverse employment action and was, therefore, not entitled to protection from the antidiscrimination laws.
Whether the reasons for the adverse employment action asserted by the employer are credible, sufficient, and not pretext for discrimination is a question of fact to be decided by a jury.

Retaliation Examples

Some examples of Texas retaliation cases can be found in the following cases:
In car dealership case Twilley v. Grace, 168 S.W.3d 777 (Tex. App.-El Paso 2005, no pet.), a sales manager alleged that after he complained about the termination of other employees, he was terminated because of his complaints and because he was not a "team player." The court found that the dealership had a practice of terminating employees who did not sell enough cars, and therefore, the plaintiff’s failure to meet his sales quota could have served as a legitimate reason for his termination. The court found that the dealership’s practice of terminating an employee who failed to meet sales goals was a legitimate business reason for which he could have been terminated, thus his retaliatory discharge claim failed.
An employee in a sales representative case, Marin v. Nationwide Mutual Ins. Co., 2007 WL 4863667 (S.D. Tex. December 18, 2007) alleged that she complained to her location counsel of various ethical and legal violations she believed the company and her location counsel were committing. After the company terminated her employment, she sued for retaliation in violation of the Fair Labor Standards Act (FLSA). The court granted the company’s motion because her termination was due to her failure to complete the required sales courses.
In Alvarez v. Freeman Decorating Services, Inc., Civ. A. No. SA-08-CA-0477-XR, 2009 WL 10697952 (W.D. Tex. December 8, 2009), the court dismissed an employee’s retaliation claim because there were insufficient facts to indicate that her motivation in making her complaint was to reveal wrongdoing by the defendant. The employee generally alleged that her co-workers made false statements about her on a regular basis to her supervisor, but failed to allege any FLSA violations. Therefore, she was unable to sustain the required causal connection between the alleged association protected and a discharge.
In Webb v. National Oilwell Varco, Inc., 81 S.W.3d 244 (Tex. App.-Houston [1st Dist.] 2002, no pet.), a warehouse worker, contended her termination was in retaliation for warning the company that its failure to repair a faulty ladder would lead to injury or death. In affirming the trial court’s dismissal of her retaliation claims, the court found that even if the employee’s warning constituted an opposing of illegal activity, the company had discharged her based on her "tendency to write up everything." (The job of a warehouse worker involved reporting equipment problems to the shift foreman, and writing up the problems if they are not resolved.)
In Pegram v. Honeywell , Inc., 361 F.3d 272, (5th Cir. 2004) (en banc), a former employee alleged that he was terminated in retaliation for his discovery of age discrimination and his attempts to prevent the age discrimination from continuing. The court found that the employee’s unilateral beliefs were not protected activity. The Fifth Circuit stated that the opposition provision protects only opposition to unlawful discrimination under Title VII. While the employee’s belief that he was the victim of age discrimination was well-founded, his opposition concerned the discriminatory conduct of others. Because he did not attempt to submit grievances, but rather, only to prevent his supervisor from continuing the discrimination of others, the employee did not engage in protected activity. The court distinguished between opposition conduct that constitutes an effort to enforce compliance with the statute from that conduct which is simply an effort to bring the illegal conduct to the attention of the offender.
In Aurelius v. Sanofi, L.L.C., 2014 WL 4763936 (N.D. Tex. 2014), a plaintiff alleged national origin discrimination in violation of Title VII and retaliation in violation of Title VII after he was laid off during a mass reduction in force. The court found that the plaintiff could not establish a claim of retaliation because he had not engaged in a protected activity. The Plaintiff alleged that he was being placed in a position where he could not succeed unless he engaged in fraud. The court held that the Plaintiff had not engaged in a protected activity when he had informally complained to management and had similarly engaged in conduct at least in part motivated by the desire to prevent unlawful discrimination.
In Sandefer v. KBR Technical Services, Inc., 453 Fed. Appx. 452 (5th Cir. 2011), a plaintiff alleged that her employer retaliated against her for complaining of sexual harassment and gender discrimination. The court found that the plaintiff had not sufficiently alleged a causal connection between her protected activity and the adverse employment action. Thus, the employer was entitled to summary judgment.
In Salinas v. O’Reilly Auto Enterprises, Inc., No. H-09-1633 (S.D. Tex. April 2, 2011) an employee who worked as an assistant manager of a regional distribution center alleged that he was fired in retaliation for his complaints regarding wage violations by the Company. The court granted the employer’s motion for summary judgment because the employee’s opposition to illegal employment practices ceased when the gender discrimination ceased.

Seeking Legal Assistance

Consulting with an attorney is often essential when pursuing a Texas retaliation claim against an employer. An experienced lawyer can identify the steps you must take to ensure your retaliation claim is successful.
If you believe you have been the subject of retaliation in the workplace, you need to immediately contact an attorney experienced with these claims. When most employees are retaliated against they are either terminated, or their work environment becomes intolerable. This may lead some employees to quit. However, in most cases you should not quit your job after being retaliated against. If you quit your job, that could give the employer a way of fighting your retaliation claim. The employer might claim that you quit, which means that you were not retaliated against.
Also, many retaliation claims center on an employee’s protected class status such as race, gender, sex, age, disability, wage complaint, military leave laws, etc. Accordingly, it takes an understanding of the law to determine whether one has a viable retaliation claim. One of the biggest mistakes employees make is believing their retaliation claim is strong enough to succeed. Sometimes employers will "settle" a retaliation claim with a few months of back pay if the employee does not sue. However, if the employee was fired on false pretenses or given a negative performance review, the employee’s retaliation claim might be unsupported.
If you believe you have been a victim of retaliation, you should consult a lawyer experienced with Texas retaliation law.

Preventing Retaliation in the Workplace

Both employers and employees can take steps to help prevent workplace retaliation. For employers, developing an understanding of what constitutes unlawful retaliation is key. The next step is developing clear policies and procedures to ensure that no unlawful retaliation occurs. When an employee brings a complaint to HR or a manager about workplace harassment or other conduct, the employer needs to respond appropriately, and the situation needs to be resolved. If not, the employee may feel compelled to file a lawsuit in order to address his or her complaints. An employer that "sweeps the issue under the rug" may ultimately face increased financial liability for the actions of its managers and supervisors.
What does this mean? With the rise of the internet, public access to information, and social media, it means that an employer should avoid unduly negative public comments about the workplace through social media sites. It also means that when managers and HR personnel learn of negative behavior in the workplace , they need to promptly take steps to stop this behavior. Swift disciplinary action, even if it’s just a warning or demotion, can make a difference in subsequent lawsuits. Most importantly, managers, supervisors, and HR personnel need to be trained on how to appropriately handle internal complaints, including retaliation claims.
Employees, too, can take steps to help prevent retaliation. If an employee is complaining about illegal conduct or working conditions, he or she needs to file an internal complaint. That way, the employer has an opportunity to investigate and resolve the issue. Employees may also wish to pursue legal counsel, to explore the possibility of filing a complaint with an agency before taking any further actions.
Employers and employees should also think about getting ahead of the issue. Both employers and employees should train on retaliation and its prevention. Employees need to be aware of their rights and obligations under the law, while employers need to be proactive in ensuring that anti-retaliation laws are followed.