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Practicing for 20+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols fights against all forms of retaliation including those based on making a complaint of discrimination or harassment, for taking Family Medical Leave Act (FMLA) leave, for making a Workers’ Compensation claim, or for refusing to commit an illegal act.
What is Retaliation?** Is an Employer Prohibited from Retaliating Against an Employee? **
The law prohibits an employer from unlawfully retaliating against an employee. Unlawful retaliation occurs when an employer takes a “Materially Adverse Action” against an employee for engaging in “Protected Activity.”
What Constitutes Protected Activity? What is a Protected Activity?**
A Protective Activity is the statutory or common law right of an employee to engage in certain conduct for which an employer is prohibited from retaliating by taking a “Materially Adverse Action” against the employee. Protected Activity may include, but not be limited to:
- Reporting or complaining about Discrimination or Harassment and a Hostile Work Environment internally (such as to Human Resources, an officer or manager of the company or in accordance with the company’s internal complaint procedures) or externally (such as to the EEOC or TWC);***
- Opposing a discriminatory practice;
- Requesting a reasonable accommodation related to Religion or a Disability and Pregnacy;
- Participating, assisting, testifying in an investigation, proceeding or hearing regarding unlawful discrimination;
- Filing a genuine claim for Workers’ Compensation Insurance;
- Refusing to Commit an Illegal Act (Sabine Pilot);
- Reporting Illegal Activity to the appropriate law enforcement agency (Whistle Blowing); and
- Other protected activity.
***An employee does not have to prove that he/she actually suffered Discrimination or Harassment and a Hostile Work Environment to prove that the employee was retaliated against for making a complaint of discrimination (or filing a Charge of Discrimination), the employee only has to show that he/she had a “good faith reasonable belief” that he/she had suffered from discrimination at the time the complaint of discrimination was made.
What Constitutes a Materially Adverse Action?**
A “Materially Adverse Action” is one that is harmful to the point that it could well dissuade a reasonable employee from engaging in Protected Activity. The requirement of materiality is intended to separate significant from trivial harms. Accordingly, this standard does not encompass the petty slights, minor annoyances, and simple lack of good manners that employees regularly encounter in the workplace. In determining whether an action is materially adverse, Courts look to indicia such as whether the action affected “job title, grade, hours, salary, or benefits” or caused “a diminution in prestige or a change in standing among co-workers.
How May an Employee Prove that their Employer Illegally Retaliated Against Them?**
There are two ways that an employee can prove that an employer retaliated against the employee:
- Direct Evidence of Discrimination.** Direct evidence of retaliation is evidence that, if believed, proves the fact of retaliatory intent without inference or presumption. Direct evidence of retaliation is usually found where an employer admits to the employee or someone else, verbally or in writing, that their intent or motive is to take a Materially Adverse Action (described above) against an employee because the employee engaged in Protected Activities, such as making a complaint of discrimination.
- Circumstantial Evidence (the Burden Shifting Analysis).** Courts recognize that direct evidence of retaliation is rare. Accordingly, they developed a system whereby an employee may prove retaliation using “circumstantial evidence.” Circumstantial evidence is another form of evidence which relies on inferences to establish retaliation. An employee may prove retaliation with circumstantial evidence by proving that the employee: (1) engaged in Protected Activity (such as making a complaint of discrimination); (2) the employer took a Materially Adverse Action against the employee; and (3) a “Causal Connection” exists between the Protected Activity and the Materially Adverse Action. If the employee successfully establishes these elements, a presumption of retaliation is created. Proving these elements is known as establishing a “Prima Facie Case” of retaliation. It is then up to the employer to produce evidence of legitimate, non-retaliatory reasons for the “Materially Adverse Action.” If so, then the employee must show that the employer’s stated reasons were “pretext” or “pretextual,” meaning that they are untrue, unworthy of belief and/or made up to hide their true discriminatory intentions. If the employee is successful, the employee may win their case. Evidence of the Causal Connection includes: (1) little or no lapse of time between the Protected Activity and the Materially Adverse Action; (2) knowledge of the Protected Activity by those making the decision regarding the Materially Adverse Action; (2) expression of a negative attitude towards the employee’s Protected Activity; (3) failure to adhere to established company policies; (4) differential treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the Materially Adverse Action was false.
What are an Employer’s Defenses to a Claim of Retaliation?**
Generally.** An employer may have several defenses to a claim of retaliation. Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true. Other defenses include the failure to “Exhaust Administrative Remedies” (discussed below). Sometimes, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a statutory violation. Many other defenses may be available depending on the circumstances.
How, to Whom and When Should an Employee Complain about Retaliation?**
- Employer’s Internal Complaint Process.** An employee of a private employer may complain to the employer using the employer’s internal complaint procedures.
- Filing a Charge of Discrimination with the EEOC (“Exhausting Administrative Remedies”).** Timely filing a “Charge of Discrimination” (also used for retaliation) with either the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”), is a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for retaliation under certain statutes, including, but not limited to: Title VII (Race, National Origin, Color, Sex, Religion, etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy). Properly filing a Charge of Discrimination and raising all of an employee’s claims of retaliation and other unlawful conduct is known as “Exhaustion of (or Exhausting) Administrative Remedies.” Some claims of retaliation do not require that a Charge of Discrimination be filed with the EEOC or TWC, including but not limited to: Whistle Blower’s Retaliation, Family Medical Leave Act Retaliation, Retaliation for Refusing to Commit an Illegal Act (Sabine Pilot) and Worker’s Compensation Retaliation. However, these claims all contain a “Statute of Limitations” (see below). Accordingly, an attorney should always be consulted immediately without delay.
When Does a Charge Of Discrimination Have to Be Filed with the Equal Employment Opportunity Commission (EEOC)? When does a Charge of Discrimination Have to be Filed with the Texas Work Force Commission (TWC)?
In order to file a lawsuit in State Court, the Charge of Discrimination must be filed with the Texas Workforce Commission, Human Rights Division, within 180 days from the date of the alleged retaliation. In order to file a lawsuit in Federal Court, the Charge of Discrimination must be filed with the local field office of the EEOC, within 300 days from the date of the alleged retaliation. The Charge of Discrimination may be jointly filed with the EEOC and TWC, however, in order to bring a lawsuit in State Court, the Charge of Discrimination must be jointly filed with the EEOC and TWC within 180 days of the date of the alleged retaliation. A lawsuit may still be filed in Federal Court, but not State Court, if the Charge of Discrimination was jointly filed between 180 and 300 days of the act of retaliation. Failing to timely and properly prepare, file or raise certain allegations in the Charge of Discrimination to either the EEOC or the TWC, may result in an employee being barred from bringing all or part of their claims in a lawsuit. This is known as a “Failure to Exhaust Administrative Remedies.” For this reason, employees should engage an attorney to assist in the preparation and filing of a Charge of Discrimination.
Practically speaking, once an employee makes a complaint of discrimination or retaliation or files a Charge of Discrimination, an employer should be extremely careful in how it reacts, and should immediately consult an attorney. Taking the wrong action could turn a beatable claim of discrimination or retaliation into a very difficult claim of retaliation.
What does the Equal Employment Opportunity Commission (“EEOC”) do? What does the Texas Workforce Commission (“TWC”) Do?**
After receiving a Charge of Discrimination, the EEOC or the TWC will usually investigate it. The employer will be asked to submit a Position Statement and explain why they are not guilty of retaliation or other illegal conduct. Both parties may be asked questions and to submit evidence in support of their position. The parties may be asked if they would like to mediate (discuss a settlement of) the dispute. In most cases, if the case is not settled, the EEOC and TWC will find that they are unable to conclude that retaliation, or other illegal conduct has occurred, and issue a “Right to Sue” letter. In rare cases, the EEOC or TWC will find that retaliation or other illegal conduct has occurred, and still issue a “Right to Sue” letter. In either of these cases, the employee will have 90 days to file a lawsuit in the appropriate Court. In even rarer cases, the EEOC or TWC will sue on the employee’s behalf.
Practically speaking, the EEOC and TWC process, as well as the process by which the employee applies for Unemployment Insurance Benefits before the TWC, are where the parties will begin to create a record of evidence to be used in support of or against their position at trial. Care should be taken to make sure statements and evidence are presented consistently, otherwise a party’s position may be severely weakened at trial.
Claims made under statutes or other common law causes of action that do not require that a Charge of Discrimination be filed with the EEOC or TWC all contain a “Statute of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, an attorney should always be consulted immediately without delay.
What Damages Can an Employee Get from a Private Employer Because of Retaliation? How Much Money can an Employee Get from an Employer Because of Retaliation?**
The following types of damages may be available to an employee who wins a retaliation case depending on the facts of the case and specific statute that the employee sues under:
- Back Pay and Front Pay.** Back Pay and Front Pay compensate an employee for wages lost because of a retaliatory act. Back pay compensates the employee for wages lost up to the time of trial. Front pay compensates and employee for wages which are anticipated to be lost after trial.
- Lost Benefits.** An employee may be able to recover the value of benefits that he or she would have received if not for the employer’s retaliatory conduct.
- Compensatory Damages.** Compensatory damages are generally intangible types of damages such as emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary damages (see below). They are generally more difficult to prove and/or to determine the value of because they are intangible. An employee must establish a legally sufficient connection between the retaliation and the damages claimed. Sometimes, a medical expert may be necessary. Past and future compensatory damages may be subject to statutory caps (a maximum) on the amount that can be recovered.
- Pecuniary Damages.** Pecuniary Damages are damages which relate to economic losses, such as medical expenses and other quantifiable out-of-pocket expenses. These are usually easier to determine the value of because they can be calculated by looking at the employee’s actual expenditures. An employee must establish a legally sufficient connection between the retaliation and the damages claimed, as well as the reasonableness of the amount spent. Sometimes, an expert may also be necessary. Past pecuniary damages are not subject to caps, however, future pecuniary damages may be.
- Attorneys’ Fees & Costs.** An employer who is found to have retaliated against an employee may be ordered to pay the amount of the employee’s attorney’s fees.
- Punitive Damages.** Punitive damages may be awarded if an employer’s retaliation was committed with malice or with reckless indifference to the statutory rights the employee.
- Other Remedies.** Depending on the facts and the statute that the employer is sued under, an employee may be entitled to other remedies as well.
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