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Employment law

retaliation

An employer or manager may not fire, demote, harass, or otherwise retaliate against a job applicant or employee for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. When the retaliation results in discharge or termination of the employee it is known as retaliatory discharge.

The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

The equal employment opportunity (EEO) laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. Asserting these EEO rights is called protected activity and it can take many forms. For example, it is unlawful to retaliate against applicants or employees for:

• filing or being a witness in an EEO charge, complaint, investigation, or lawsuit

• communicating with a supervisor or manager about employment discrimination, including harassment

• answering questions during an employer investigation of alleged harassment

• refusing to follow orders that would result in discrimination

• resisting sexual advances or intervening to protect others

• requesting accommodation of a disability or for a religious practice

• asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws—even if the employee did not use legal terminology to describe it.

Engaging in EEO activity, however, does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. But an employer is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.

For example, depending on the facts, it could be retaliation if—in response to an employee’s EEO activity—an employer:

• reprimands the employee or gives a performance evaluation that is lower than it should be;

• transfers the employee to a less desirable position;

• engages in verbal or physical abuse;

• threatens to make, or actually makes reports to authorities (such as reporting immigration status or contacting the police);

• increases scrutiny;

• spreads false rumors, treats a family member negatively (for example, cancels a contract with the person's spouse); or

• makes the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

What activity is protected by the prohibition against retaliation?

An employee engages in protected activity when the employee: (1) opposes a practice they consider to be discriminatory; (2) participates in an employment discrimination proceeding; or (3) engages in other protected activity.

• Opposing Discrimination: Opposing a discriminatory practice consists of communicating to the employer a reasonable, good-faith belief that the employer is engaging in prohibited discrimination. Examples of opposition include complaining to anyone about alleged discrimination against oneself or others; threatening to file a complaint alleging discrimination; picketing in opposition to discrimination; or refusing to obey an order reasonably believed to be discriminatory. Examples of employee activities that are not protected as opposition include actions that interfere with job performance so as to render the employee ineffective, or unlawful activities such as acts or threats of violence.

• Participating in an employment discrimination proceeding: Participation means taking part in an employment discrimination proceeding. Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include filing a charge of employment discrimination; cooperating with an internal investigation of alleged discriminatory practices; or serving as a witness in an EEO investigation, lawsuit, or other legal proceeding.

• Other Protected Activity: Additional protected activity includes requests for an accommodation based on disability or religion.

Which individuals are covered by this protection?

Covered individuals are persons who have requested accommodations, opposed unlawful practices, or participated in proceedings related to employment discrimination based on race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, or genetic information. Protections are also extended to individuals based on sexual orientation and parental status pursuant to Executive Order and Department of Labor policy.

Individuals who have a close association with someone who has engaged in such protected activity are also covered individuals. For example, it is illegal to take adverse action against an employee because his spouse participated in employment discrimination proceedings.

Individuals who have brought attention to violations of law other than employment discrimination are not covered individuals for purposes of anti-discrimination retaliation laws. Individuals may have recourse under the anti-retaliation provisions of those other laws, but not under the laws enforced through the federal EEO process. For example, “whistleblowers” who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by federal employment discrimination laws.

What is an adverse action prohibited by EEO statutes, regulations, or policies?

An adverse action is an action taken to penalize someone for or prevent someone from opposing a discriminatory employment practice; participating in an employment discrimination proceeding; or requesting an accommodation based on disability or religion. Such an action could form the basis of a new EEO complaint.

Examples of adverse actions include: (1) denial of promotion; (2) non-selection/refusal to hire; (3) denial of job benefits; (4) demotion; (5) suspension; (6) discharge; (7) threats; (8) reprimands; (9) negative evaluations; (10) harassment; or (11) other adverse treatment that is likely to deter reasonable people from pursuing their rights.

In Texas, as in other states, it is illegal for employers to retaliate against employees or job applicants who engage in protected activities under Equal Employment Opportunity (EEO) laws. Protected activities include filing a complaint of discrimination, participating in a discrimination proceeding, or opposing discriminatory practices. Retaliation can take many forms, such as termination, demotion, harassment, or any other action that would dissuade a reasonable person from making or supporting a discrimination claim. This protection extends to all individuals who oppose practices they reasonably believe to be discriminatory, participate in discrimination proceedings, or request accommodations for disabilities or religious practices. The laws cover discrimination based on race, color, sex, religion, national origin, age, disability, genetic information, sexual orientation, and parental status. If an employer in Texas takes adverse action against an employee because of their involvement in protected EEO activities, the employee may have grounds to file a retaliation claim. Employers are still allowed to discipline or terminate employees for legitimate, non-retaliatory reasons unrelated to the employee's EEO activity.


Texas Statutes & Rules

Texas Labor Code, Chapter 21, Subchapter B, Section 21.055 - Retaliation
This statute is relevant because it explicitly prohibits employers from retaliating against individuals who engage in protected activities under the Texas Commission on Human Rights Act (TCHRA).

Under Section 21.055 of the Texas Labor Code, an employer is prohibited from retaliating against an individual who, under the TCHRA, opposes a discriminatory practice, makes or files a charge, files a complaint, or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. This protection extends to job applicants and employees and covers actions such as firing, demoting, harassing, or any other form of retaliation because of the individual's protected activities.

Texas Labor Code, Chapter 21, Subchapter B, Section 21.051 - Discrimination by Employers
This statute is relevant as it outlines the unlawful employment practices regarding discrimination, which, if opposed or reported by an employee or applicant, could lead to retaliation that is prohibited.

Section 21.051 of the Texas Labor Code makes it unlawful for an employer to fail or refuse to hire, to discharge, or to discriminate in any other manner against an individual because of race, color, disability, religion, sex, national origin, or age. It also prohibits discrimination based on an individual's opposition to a discriminatory practice, filing of a discrimination charge, or participation in a discrimination proceeding. Retaliation against individuals for engaging in these protected activities is therefore also considered unlawful under this section.

Texas Labor Code, Chapter 21, Subchapter H, Section 21.258 - Civil Practices and Remedies
This statute is relevant as it provides the remedies available to individuals who have been subjected to retaliation in violation of the Texas Labor Code.

Section 21.258 of the Texas Labor Code allows an individual who has been retaliated against in violation of the TCHRA to bring a civil action for relief. This may include reinstatement, back pay, compensatory damages, and even punitive damages if the employer acted with malice or reckless indifference. The statute also provides for recovery of attorney's fees and court costs, making it financially feasible for individuals to seek justice for retaliation.

Texas Labor Code, Chapter 21, Subchapter J, Section 21.301 - Complaint Procedures
This statute is relevant as it outlines the procedures for filing a complaint of discrimination or retaliation with the Texas Workforce Commission Civil Rights Division.

Section 21.301 of the Texas Labor Code establishes the procedures for an individual to file a complaint of discrimination or retaliation. The complaint must be filed within 180 days after the alleged unlawful employment practice occurred. This section is crucial for individuals who believe they have been retaliated against, as it provides the mechanism for officially starting the process of seeking redress under the TCHRA.

Federal Statutes & Rules

Title VII of the Civil Rights Act of 1964
Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. It also includes protections against retaliation for opposing discriminatory practices or participating in discrimination proceedings.

Title VII makes it unlawful for employers to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who engage in protected activities, which include filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII. Retaliation can include any adverse employment action such as demotion, firing, reprimanding, or any action that would likely deter a reasonable person from making or supporting a charge of discrimination.

The Age Discrimination in Employment Act of 1967 (ADEA)
The ADEA protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment and also prohibits retaliation.

The ADEA forbids age discrimination against people who are age 40 or older. It also protects against retaliation for opposing age discrimination or for participating in any stage of administrative or judicial proceedings under the ADEA. Retaliatory actions are prohibited when an individual has availed themselves of their rights under the ADEA, such as filing a complaint, testifying, or assisting in an investigation related to age discrimination.

The Americans with Disabilities Act of 1990 (ADA)
The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, and also prohibits retaliation against individuals for exercising their rights under the ADA.

The ADA prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA also forbids employers from retaliating against an individual for asserting their rights under the ADA, including but not limited to filing a discrimination lawsuit, participating in an investigation, or requesting reasonable accommodations for a disability.

The Genetic Information Nondiscrimination Act of 2008 (GINA)
GINA prohibits discrimination based on genetic information in health insurance and employment and protects against retaliation for opposing conduct made unlawful by GINA or for participating in proceedings under the Act.

GINA prohibits the use of genetic information in making employment decisions and restricts employers from requesting, requiring, or purchasing genetic information. It also protects individuals from retaliation for opposing actions that violate GINA, for filing a complaint, or for participating in an investigation or litigation under GINA. Retaliation can include any adverse employment action such as firing, not hiring, or discriminating against an employee or applicant.

The Equal Pay Act of 1963 (EPA)
The EPA requires that men and women be given equal pay for equal work in the same establishment and also includes protections against retaliation for asserting these rights.

The EPA mandates that employers pay all employees equally for equal work, regardless of their gender. The work does not have to be identical, but it must be substantially equal. It also prohibits retaliation against employees who file a complaint, testify, or assist in any proceeding under the EPA. Retaliation can include any adverse employment action such as demotion, firing, or any other form of penalty.

Section 501 of the Rehabilitation Act of 1973
Section 501 prohibits discrimination against individuals with disabilities in the federal sector and includes protections against retaliation for exercising rights under the Act.

Section 501 of the Rehabilitation Act requires affirmative action and nondiscrimination in employment by federal agencies of the executive branch. It also protects employees or applicants from retaliation for exercising their rights under the Rehabilitation Act, such as filing a complaint, testifying, or participating in an investigation or litigation.