There are countless criteria that should be considered before filing an employment discrimination lawsuit against your current or former employer.  And before making that decision, it is certainly recommended that you speak with an employment lawyer near you.  However, some of the issues that you should evaluate prior to making that decision include the following:

• Have you filed a charge of discrimination with the Texas Workforce Commission or Equal Employment Opportunity Commission (EEOC)?
• Do you have a Right to Sue from the Texas Workforce Commission or Equal Employment Opportunity Commission (EEOC)?
• What evidence do you have to support your employment discrimination claim?
  • Do you have any witnesses?
  • Do you have documentation?
  • Do you have audio/video recordings?
• What are your potential damages?
• Can you afford to pursue litigation?

Before filing an employment discrimination lawsuit

Unlike some areas of law that allow individuals to file a lawsuit immediately (e.g. personal injury arising out of an auto accident), an employee who is claiming employment discrimination must first file a charge of discrimination with the Texas Workforce Commission and/or Equal Employment Opportunity Commission (EEOC).  This is a prerequisite for filing a lawsuit in state or federal court.  Once the charge of discrimination is filed, an investigation will be conducted for a period typically between 6 months and a year before you are issued a Right to Sue.  Once the Right to Sue is received, you will have either 60 days (if it is received from the Texas Workforce Commission) or 90 days (if it is received from the EEOC) to file a lawsuit in state or federal court, respectively.

Do I have enough evidence to prove employment discrimination?

Because each and every case is so very different, it is impossible to lay out what evidence is, and is not, sufficient to prove employment discrimination.  However, the more evidence of discrimination that you have, the easier it is going to be to prove.  The types of evidence that will likely be most helpful are documentary evidence (e.g. emails, memos, notes, etc.), audio/video recordings, and witnesses.  You want to evaluate all of your evidence to determine the strengths and weaknesses of your claim(s) before filing suit.

How much is my case worth?

The value of any case is determined based on the specific facts of the claim(s).  A significant portion of the damages in an employment discrimination lawsuit is based on the length of employment and income pre and post-termination.  Additionally, you can recover emotional distress/mental anguish damages based on the severity of the discriminatory conduct.  There are also certain statutory caps on the maximum amount of damages that can be recovered. 

How much does an employment discrimination lawsuit cost?

Once again, every case is different, and that includes how much money it costs to successfully pursue an employment discrimination lawsuit.  At the very least, you are looking at a filing fee and service of the lawsuit, which is generally in the range of $400-500.  After that, the majority of your costs will be in depositions (paying a court reporter and potentially a videographer) and expert witnesses.  Deposition costs will typically run between $750-2,000 per deposition but can exceed that if travel is involved.  It may be helpful to have an expert witness involved in your case to testify about the financial losses or emotional distress you have suffered as a result of the discriminatory termination.  Expert witness fees can vary wildly, but you are generally looking at spending several thousand dollars to retain one.  Prior to filing suit, you must determine if the cost of potential litigation is something that you can afford.

At the end of the day, it is always good advice to speak with an employment attorney about your potential claim(s) before deciding to file an employment discrimination lawsuit.  Not only is it smart to have an outside opinion, but an employment attorney will be better versed in the current state of the law and which court, if any, is best to file in.  Ultimately, you may choose to get multiple consultations from attorneys before determining (a) if you should file an employment discrimination lawsuit and (b) which attorney you will retain to represent you in that lawsuit. 

During what is oftentimes one of the happiest times in a woman’s life, the workplace can be a very scary place to navigate as a pregnant employee in Texas.  Most employees are unaware of what legal rights they do (and don’t) have.  One question that may arise is what rights you have while employed and pregnant.  Another may be what rights you have to maternity leave following the birth of your child.  Under the Pregnancy Discrimination Act (which only applies to employers with 15 or more employees), a company cannot fire, refuse to hire, harass, demote, or take other adverse action against a pregnant employee if the woman’s pregnancy (or related medical condition) was a motivating factor in that decision.  Although we are living in the 21^st century, it is still far too common for women to be fired because of pregnancy or their need to take leave for the birth of a child or to care for their newborn.  If you or someone you know is being discriminated against because of a pregnancy or birth of a child, it is imperative that you contact a pregnancy discrimination attorney as soon as possible to fully understand and protect your legal rights.

What leave am I entitled to during my pregnancy?

A pregnant employee in Texas must be afforded the same as other non-pregnant employees with respect to leave and other benefits.  Likewise, an employer cannot force an employee to take leave because of her pregnancy so long as she is capable of performing her job.  If a pregnant employee is not able to perform her job duties as a result of physical limitations resulting from the pregnancy, she must be allowed to take leave on the same terms and conditions as other employees who are similar in their ability or inability to work.  Additionally, if a pregnant employee does have to take leave due to a pregnancy-related condition, she must be allowed to return to work to the same extent that other employees on sick or disability leave are allowed to return.

Beyond normal leave and benefits that a pregnant employee should be afforded, a pregnant employee who has an impairment related to her pregnancy may qualify for a reasonable accommodation under the Americans with Disabilities Act (ADA).  For example, a company may be required to provide certain equipment for the pregnant employee to allow her to sit while performing job duties that are typically performed while standing.  An employer may modify certain workplace policies or work schedules.  It is also possible that a pregnant employee may be able to take leave as a reasonable accommodation beyond what the employer would normally provide under its sick leave policy.  These are all very fact-specific issues, and the best thing that you can do is reach out to a pregnancy discrimination attorney in your area to discuss your legal rights.

What leave am I entitled to following the birth of my child?

The Family Medical Leave Act (FMLA) allows certain employees who have worked a year or longer for a company with 50 or more employees to take up to 12 weeks of leave for the birth and care of the employee’s newborn (or for the employee’s serious health condition if there are medical complications related to the birth).  The FMLA does not require the employer to pay the employee anything for this leave, but a company’s own policy and/or certain short-term disability policies may provide for a certain amount of pay.  If a pregnant employee intends to take some or all of the 12 weeks of FMLA protected leave, she must:

• Notify the employer in advance of her intention to take the leave and
• Fill out and submit any required paperwork.

At the expiration of the employee’s FMLA leave, she must be returned to the same or equivalent position.

Harassment in the workplace is an all too common experience for employees across the country.  And that reality is no different for employees in Texas.  When faced with harassment for the first time, many employees are confused about their legal rights and don’t know what they should and shouldn’t do.  At times, employees can freeze up out of fear that they will be retaliated against if they report the harassment.  It is important that all employees in Texas understand that there are certain steps that should be taken when faced with harassment in the workplace. If you believe that you are being subjected to harassment at work, then it is important to speak with an employment attorney who can both advise you of your legal rights and help shield you from continued harassment.

What constitutes harassment in the workplace?

Under both state and federal law, employees are protected from harassment in the workplace when the harassment is based on a protected characteristic of the employee (i.e. race, color, religion, sex (including pregnancy), national origin, age (40 or older), or disability).  Employees are also protected from harassment that occurs in response to the employees filing of a discrimination complaint or participation in an investigation of a discrimination complaint.

Harassment can come from co-workers, supervisors, management, or even a non-employee (e.g. customer or vendor).  It can include unwelcome touching, inappropriate jokes, slurs, name-calling, or other offensive conduct.  It can also include behavior that affects the employee’s terms or conditions of employment, such as schedules, pay, transfers, or changes in job duties or position.

Harassment that occurs in isolated incidents, or behavior that is considered minor, petty, or annoyances, may not rise to the level of behavior that is covered under the anti-discrimination laws.  For the behavior to be serious enough to be considered unlawful harassment, it must create a work environment that is either (a) conditioned on the employee enduring the harassment or (b) a reasonable person would consider being hostile or abusive.

What do I do if I’m being harassed at work?

One of the first things that any employee who is being harassed at work can do is to object to the harassment directly to the harasser and tell them to stop.  Whether you tell the harasser to stop or not, the next step to take would be to report the harassment to your employer’s HR department.  It is important to make this complaint in writing so that it is documented.  It is also important to review your employer’s anti-harassment policy, if one exists, and to follow any steps outlined in that policy.  If the company does not have an HR person and there is no anti-harassment policy, then the next option may be to report the harassment to your direct supervisor or another supervisor within the company.  Finally, an employee who is being harassed at work has the right to file a charge of discrimination with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC).

While it is not required that an employee is represented by an attorney to pursue a harassment complaint, it is always important to fully understand your legal rights.  A workplace harassment attorney can be a great place to start if you are being harassed at work and considering pursuing a claim against your employer.

If you are experiencing discrimination, retaliation, or any other legal issue in the workplace, one of the first things you should always do is reach out to an employment attorney in your area.  You want someone who can provide you with legal advice and explain your options should you choose to pursue legal action against your current or former employer.  So, what should you expect when you set up a consultation to meet with an employment discrimination lawyer?  While many attorneys provide a free initial consultation (typically lasting between 30 minutes and 1 hour), you want to confirm in advance if there are any fees associated with this first meeting.  The initial consultation is primarily an opportunity for you to share your story and explain what you believe to be a violation of the law.  The employment attorney’s role in this meeting will be to (a) listen to the story, (b) ask questions, and (c) let you know if you have any potential legal claims to pursue. 

What do I bring to my initial consultation?

Keep in mind that you are not going to have time during an initial consultation to touch on every single detail related to your potential claim(s).  However, you should be comfortable going over the timeline of events that you believe are most related to your potential legal claim(s).  If you have any documentation to support your claim, you likely want to bring that information with you.  Because you (and the attorney) will not have time to go over every single detail and piece of potential evidence in this initial meeting, you should focus on identifying the documents that are most relevant to your claim.  The evidence you bring could include text messages, emails, memos, or audio/video recordings. 

The Good, the Bad, and the Ugly

You must always be open and honest with the attorney.  If you only provide the positive aspects of your claim, the negative facts will almost certainly come out down the road.  For an attorney to be able to most effectively represent you, he/she must know all of the facts; the good, the bad, and the ugly.  When you refrain from giving the full picture, you are only doing yourself a disservice and making the attorney’s job more difficult. 

Choosing the Employment Attorney who is Right for You

Following the initial consultation, the attorney should let you know whether you have a potential legal claim to pursue, and, if so, whether the attorney is willing and able to represent you.  If the attorney believes you have a claim and is willing to represent you, the attorney will also let you know what the fees will be to represent you in the matter.  Attorney’s fees can fall into several different categories: an hourly fee basis (usually requires an up-front retainer fee), flat fee (you pay the attorney a flat retainer fee up-front to represent you in the matter), partial contingency fee basis (you pay an up-front retainer fee plus the attorney has a contingency fee in any monetary recovery), or a contingency fee basis (the attorney only gets paid if he/she obtains a monetary settlement/recovery on your behalf).  Ultimately, in selecting the employment lawyer who is right for you, you should be comfortable with both the attorney and the fees that you are agreeing to. 

With Texas being an at-will employment state, there are limited legal protections for employees.  At-will employment essentially means that an employee can be fired for any reason (good or bad) or no reason, so long as the employee is not fired for a reason that violates a state or federal statute.  One state statute that provides certain protections to public employees in Texas is the Texas Whistleblower Act, Chapter 554 of the Texas Government Code.   

The Texas Whistleblower Act only applies to employees of state and local governmental entities in Texas.  The Act specifically protects a public employee who has reported in good faith what he/she believes to be a violation of federal or state law, a local government ordinance, or a rule adopted under a law or an ordinance.  Generally, it does not provide protections for reporting violations of an agency’s employee handbook or personnel policies. 

What is considered protected activity?

To be considered protected activity, the violation of federal or state law must be made to an “appropriate law enforcement authority.”  This is where the Act gets a little bit more complicated and limited in its application in the real world.  An appropriate law enforcement authority is defined as “a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

1. Regulate under or enforce the law alleged to be violated in the report
2. Investigate or prosecute a violation of criminal law.

So what does that mean in Layman’s terms?  Unfortunately, because of the current state of the law, it is not always clear what that means.  In some situations, the appropriate law enforcement authority may be the Texas Attorney General’s Office.  In others, it could be the United States Department of Justice.  It could also be a report made to the particular state agency that is tasked with regulating or investigating violations of the law in question.

So am I protected if I make a report to my supervisor or human resources?

One of the biggest issues with the Texas Whistleblower Act is what happens when an employee reports a violation of state or federal law to his/her supervisor or HR.  Generally, an employee’s report to his/her supervisor or HR is not going to be considered a report to an appropriate law enforcement authority.  The unfortunate reality is that a significant number of employees who experience retaliation have only reported a violation of law internally.  Under the Texas Whistleblower Act, these types of reports likely provide no protection to the employee. 

Finally, in order for there to be a retaliation claim:

• The employee who reports the violation of law must have been suspended, terminated, or otherwise adversely affected by a personnel action for having reported the violation. 
• If the public employee is suspended, terminated, or adversely affected, he or she must first file a grievance or appeal with the employer within 90 days of the violation (if the employer has a grievance policy or appeal procedure). 
• If the grievance does not resolve the employee’s complaint, the public employee must file a lawsuit within 90 days of the violation (not including the time spent in the employer’s grievance/appeal procedure).

As with any potential legal claim, it is always important to speak with an employment attorney if you believe that you may have been retaliated against for reporting a violation of law.  Due to the small window of time that one has to pursue a whistleblower claim in Texas, as well as the complexities of the law, an attorney can help ensure that your rights are protected.