Workplace retaliation in Texas: your rights and what to do

What counts as protected activity

Federal anti-discrimination laws and Texas Labor Code § 21.055 protect you when you:

• Oppose discrimination or harassment. Complaining to a supervisor, manager or HR counts, even informally and without legal words, as long as you reasonably believed the conduct was unlawful.
• File a charge or complaint with the EEOC or the Texas Workforce Commission, or file a lawsuit.
• Take part in an investigation as a witness, including an internal one about someone else's complaint.
• Refuse an order that would mean discriminating against someone.
• Report or object to sexual harassment, including advances made to a coworker. (Being punished for turning down a supervisor's advances is itself sexual harassment.)

Accommodation requests. Under federal law, asking for a disability accommodation is protected, and the EEOC treats a request for a religious accommodation the same way. Under Texas law, a request generally counts only if it tells your employer you believe you're facing discrimination, so put that in writing if it applies.

The complaint has to be about discrimination tied to a protected trait, such as race, sex, age, disability, religion or national origin. A general complaint that a boss is unfair or rude usually isn't protected under these laws.

What counts as retaliation

Retaliation isn't limited to being fired. Under the Supreme Court's test, it's any action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Depending on the facts, that can include:

• firing or forced resignation
• demotion or a pay cut
• a transfer to a worse job, shift or location
• write-ups or a lower performance review than you earned
• sudden extra scrutiny
• making your job harder, or threats
• verbal or physical abuse
• refusing a reference or a promotion

Petty slights and minor annoyances usually aren't enough on their own. Your employer can also still discipline you for legitimate reasons unrelated to your complaint.

How retaliation is proved

You must show that your employer wouldn't have taken the action but for your protected activity. Few employers admit that, so retaliation is usually proved with circumstantial evidence:

• Timing. Discipline or firing soon after a complaint is important evidence, but usually not enough by itself, and when months pass, courts want more.
• Knowledge. The person who made the decision knew about your complaint.
• A change in treatment. Good reviews before the complaint, problems after it.
• Shifting explanations. The reason for the decision changes, or doesn't hold up.
• Different treatment. Coworkers who didn't complain weren't punished for the same thing.
• Skipped steps. The employer didn't follow its own discipline policies.

Retaliation has been the most common claim in charges filed with the EEOC for years. It can succeed even when the original complaint isn't proven, as long as you made it reasonably and in good faith.

Other Texas retaliation laws

Other laws protect you for different kinds of complaints, often with different and sometimes much shorter deadlines:

• Workers' compensation. Texas law forbids firing or discriminating against an employee for filing a workers' compensation claim in good faith.
• Refusing to break the law. Texas courts protect private employees fired solely for refusing to perform an illegal act that carries criminal penalties.
• Public employees who report violations of law to an appropriate law enforcement authority are protected by the Texas Whistleblower Act, which has short deadlines.
• Safety complaints. Retaliation for reporting unsafe conditions must generally be reported to OSHA within 30 days.
• Wage complaints and medical leave are protected under the Fair Labor Standards Act and the Family and Medical Leave Act.

What to do if it's happening to you

1. Put complaints in writing. Email HR or a manager, describe the discrimination, and keep a copy somewhere other than your work account.
2. Keep a timeline of what happened, when, and who was involved, written as close to the time as you can.
3. Keep doing your job and follow company rules, so your employer has no legitimate reason to point to.
4. Don't quit without advice. Resigning can make a case much harder to win.
5. If you already filed a charge, tell the EEOC about the new retaliation. You may need to amend your charge or file a new one.
6. Watch the deadlines. In Texas, 180 days protects both your federal and state claims.