Retaliation

In Texas, employees are shielded from employer retaliation with regard to certain protected activities.  Specifically, to litigate and recover for a retaliation claim, the plaintiff-employee must show that:

  1. They were involved in a protected activity;
  2. The defendant-employer either terminated the employee or engaged in some other adverse employment action; and
  3. The defendant-employer engaged in the adverse employment action due to the employee’s involvement in the protected activity.

Each of these elements must be satisfied to ensure a successful recovery.

Protected Activity

A range of state and federal regulation protects employees against retaliation.  Importantly, not all activities are protected.  An employer is entitled to engage in adverse employment actions that are legitimate and that do not overstep the legal protections granted to their employees.  For example, if a sales employee has insulted a long-time client, the employer may reasonably demote, suspend, terminate, or otherwise take action against said employee.

What constitutes a protected activity?

Protected activities include, but are not necessarily limited, to:

  • Submitting, assisting with, or participating in the investigation of an employment discrimination complaint
  • Refusal to engage in criminal activity
  • Acting as a whistleblower in accordance with various state and federal whistleblowing statutes
  • Complaining about or otherwise opposing workplace policies, from relational environment to safety issues
  • Requesting reasonable accommodation
  • Filing for workers’ compensation
  • Taking legally-entitled leave (i.e., maternity leave, FMLA leave, etc.)
  • Filing a complaint for unpaid wages or overtime pay issues
  • Performing jury duties
  • And more

Adverse Employment Action

For a plaintiff to succeed in demonstrating that retaliation has occurred, they must prove that the employer engaged in an adverse employment action.  Adverse employment actions need not be limited to termination.  They include, but are not necessarily limited, to:

  • Termination of employment
  • Suspension of employment
  • Demotion
  • Denying a promotion
  • Denying a pay raise
  • Denying benefits
  • Creating a hostile work environment
  • Forcing the employee to transition to a different position
  • Increased workload and responsibilities without pay increase
  • Increased supervision of employee

Causation

Critically, the adverse employment action must be causally linked to the employee’s engagement in the protected activity.  This can be challenging to prove, particularly in cases where the employee has a number of other qualities that could justify an adverse employment action.  For example, if a retail employee is particularly rude and has difficulty communicating effectively, the employer may feel justified to deny them a promotion to a client-facing role — the fact that the same employee submitted a claim for discrimination earlier does not necessitate that the two incidents are causally linked.

Retaliation claims can be rather complicated to litigate, given the wide range of possible adverse actions and the difficulty of demonstrating a causal link between the adverse action at-issue and the employee’s activities.  Here at Berg Plummer Johnson & Raval, LLP, our Houston employment attorneys have decades of combined experience representing clients in actions brought based on unlawful retaliation.  As we have experience litigating claims for both employees and employers, we are more than capable of handling the strategies commonly engaged by opposing counsel.

Every client is different — Berg Plummer Johnson & Raval, LLP recognizes that clients have diverse objective and limitations.  As such, we provide customized fee arrangements designed to help our clients accomplish their legal objectives while remaining comfortably within their budgetary constraints.

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