Retaliation/Reprisal Claims


I think my employer fired me because I filed a sex discrimination claim.


What is retaliation or reprisal, and how do I prove it?


To prove a claim of retaliation, you must show the following elements:
1. You participated in legally "protected conduct;"
2. Your employer took an "adverse employment action" against you; and
3. There is a causal connection between your protected conduct and the "adverse employment action."


By establishing all of these elements, you will create an initial presumption that your employer unlawfully retaliated against you.


For what reasons can I be fired?


Your employer can fire you for a host of different reasons — including no reason at all, if you are what is called an "at will" employee. As the name suggests, an employer can fire an "at will" employee at his or her discretion at any time. Fortunately, however, Texas recognizes an exception to the "at will" employee rule, which allows an "at will" employee to bring a claim of "retaliation" against an employer so long as the employee can show either (1) the employer retaliated against the employee for reporting suspected sex discrimination, or (2) the employee refused to engage in illegal activity.


What is "protected conduct"?


To succeed on a claim of "retaliatory discharge," you must first show that you engaged in "protected conduct" under the law. In Texas, "protected conduct" includes (1) opposing your employer’s discrimination, (2) filing a charge of discrimination, (3) filing a complaint (or voicing an oral complaint), or (4) participating in an investigation or proceeding against your employer for discriminatory practices. Your employer is prohibited from taking action against you in retaliation for any of these types of conduct.


If I report what I believe is sex discrimination, but I am wrong, am I still protected if my employer retaliates against me?


Under Texas law, you do not have to prove sex discrimination actually took place; however, you must show that you have a "good faith reasonable belief" that your employer broke the law by discriminating against you because of your sex. Some Texas courts have been receptive to women’s good faith beliefs, but others have taken a harsher stance. In the harsher cases, the Court has determined that the conduct reported, such as a few off-color comments, in no way could be reasonably construed as sex discrimination.


How do I show that my legally protected conduct led to my discharge?


Any evidence you can produce that your employer took action against you because of your "protected conduct" will help to prove your case. More often than not, women do not have any direct evidence of retaliation, but the circumstances of the adverse employment action may help to prove a link between the two. At a bare minimum, you should be able to show that your employer 1) knew about your "protected conduct" (e.g. that you filed a charge of sex discrimination) and 2) took the "adverse action" against you soon thereafter.


Did my employer retaliate against me by taking an "adverse action"?


Texas courts have recognized "adverse employment actions" as those that rise to the level of ultimate employment decisions — these include refusal to hire, refusal to grant leave, discharges, or failure to promote. Demotion may also be considered an "adverse employment action." In other words, your employer’s action against you must be substantial enough to affect the terms and conditions of your employment. Written warnings, poor job evaluations, and even being placed on probation may not be substantial enough to be considered "adverse actions."


Must I show that my employer knew about my "protected conduct"?


Yes, you should be able to show that your employer knew about your "protected conduct" before taking an "adverse action" against you.


I’ve just received a warning from my employer, and I suspect I will be fired soon. What should I do?


If you receive a warning from your employer, your first instinct may be to panic or even become angry. Depending on the circumstances, you should remain cool and collected, especially since your employer may continue monitoring your work. Generally, you should begin gathering information: Clarify the warning if necessary by asking your employer, get a copy of company policy on warnings/dismissals to ensure that your employer is following its own policies, talk to trusted co-workers to see if they have any insights into what they have observed in the workplace, keep track of the date/time of interactions with your employer as well as any documents that may be relevant, and, most importantly, consider whether the warning may have something to do with sex discrimination or complaining about sex discrimination. Ask yourself if your employer’s warning comes on the heels of your confronting the company about sex discrimination. If so, there may be more to the warning than meets the eye.


What can I do to protect any legal rights I might have before leaving my job?


You should definitely keep a paper trail and try to document the date and time of any interactions with your employer. Dates and times become very relevant if you decide to file a claim of sex discrimination because the Workforce Commission needs to be able to evaluate whether you are filing your claim within the statute of limitations. You should also try to gather any relevant documents you might have access to, such as a hiring letter, termination letter, any documents in your personnel file, and any employee handbook or policy manual. These documents may serve as important evidence at a later time if you proceed with filing a claim of sex discrimination against your employer.


I am being forced to leave my job. But before I go, my employer requires that I sign a document promising not to sue. Is that legal?


It is not illegal for your employer to get you to sign a waiver, but the waiver itself may not hold up in court. Be conscious that you are taking a risk if you sign a waiver. If you have any doubts about your employer’s reasons for firing you, especially if you think your employer may be retaliating or discriminating against you, you should not sign the waiver or consult with an attorney before signing anything.


What could my employer do to deny my allegations, and how do I respond to its denials?


Your employer will have an opportunity to produce evidence that it fired you for a legal reason, and not in retaliation for your "protected conduct." Your employer may, for example, claim you were going to be fired anyway due to poor workplace performance. Irreconcilable personality differences may also serve as a valid reason for termination.


Ultimately, you must convince the court or the jury that "without," or in legal terms, "but for," your "protected conduct," your employer would not have taken action against you. In other words, you must persuade the court or the jury that your employer’s claimed reason for taking action against you is a mere pretext for what was actually retaliation.



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