State and Federal law prohibit harassment in the workplace when the harassment is based on an employee’s protected characteristics or the exercise of certain legal rights. Protected characteristics include gender/sex, race, color, age (over 40), national origin, disability, and religion. Harassment is also prohibited when an employee exercises his/her legal rights, including:

• applying for or taking leave under the Family and Medical Leave Act (FMLA)
• filing a complaint of discrimination,
• filing a wage/overtime claim
• filing a claim for workers’ compensation
• requesting a reasonable accommodation for a disability.

If you believe that you are being subjected to harassment at work based on one of the above reasons, 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.

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.

Can I sue my employer for harassment?

Ultimately yes, but there are steps that must first be taken before you have the legal right to file a lawsuit. First, as outlined above, there is no legal claim for “harassment” at work if it is not based on a protected characteristic or the exercise of an employee’s various legal rights. For example, if a supervisor is hostile (e.g. yelling, cursing, demanding, etc.) towards all employees without regard to the employee’s protected characteristics, then there is no legal claim for harassment. The supervisor’s hostility/harassment must be directed towards employees of a particular group for there to be a potential claim of harassment.

If an employee is being harassed because of his/her protected characteristic(s), then the employee has the right to file what is called a Charge of Discrimination with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC). There are two main scenarios when an employee can and should file a complaint with the TWC and EEOC. The first occurs when the harassment has become so severe and pervasive that it has created what is referred to as a hostile work environment. This means that a reasonable person would find the harassment to be intimidating, threatening, and abusive. The other scenario occurs when the harassment has become a condition of continued employment. This is also known as quid pro quo harassment, and one of the most common examples is when a supervisor is sexually harassing a subordinate and making the employee’s job contingent upon his/her acceptance of the sexual advances or other sexual harassment.

Am I protected from retaliation if I complain of harassment?

Once an employee has either:

1. Filed a complaint with the employer’s human resource department concerning the harassment
2. Filed a complaint with the TWC and EEOC, the employee is protected from retaliation or further harassment because of that complaint.

To be protected activity, the harassment complaint must relate to a protected characteristic. 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 considering pursuing a claim against your employer.

There is no one size fits all resolution for a complaint of employment discrimination or retaliation.  The first thing that must be evaluated is what the individual wants as an outcome of the complaint of discrimination.  Some employees are most interested in preserving their job, and putting a stop to the discriminatory or harassing behavior.  Other employees are more interested in attempting to negotiate a severance and move on from their job because the employment relationship is no longer salvageable.  An employee who has been terminated because of a discriminatory reason may want his/her job back.

What does the law allow me to recover?

Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code both limit compensatory damages (e.g. mental anguish, emotional pain, suffering, etc.) to $300,000 for employers with more than 500 employees.  The limitations are

• $200,000 for employers with 201 to 500 employees
• $100,000 for employers with 101 to 200 employees
• $50,000 for employers with 15 to 100 employees

Front pay and back pay are not subject to these limitations.

While there are certain limitations placed on the amount of money that you can potentially recover in an employment discrimination claim, negotiations leave open the possibility for both parties to get somewhat creative in terms of the resolution.  For example, while employers are typically reluctant to provide a positive reference letter as part of a settlement, employers will oftentimes be willing to agree to include neutral reference language in a settlement agreement.  This type of language will typically limit the employer to providing only the following information about a former employee to a potential employer:

1. dates of employment
2. positions held
3. rate of pay  

Sometimes, a reference or a neutral reference can be more valuable to an individual than a monetary settlement.  There are also very limited circumstances in which a terminated employee (or an employee who resigned due to ongoing harassment) is offered reinstatement to his/her former position. 

What factors are considered in determining the value of a claim?

There are a number of factors that play a part in the potential recovery for any given person who is pursuing a complaint of discrimination.  Obviously, the factual allegations being made by the employee must be considered.  How strong of a claim is it and how seriously does the employer take it?  Is there strong evidence that supports the allegations?  As with any negotiation, you need two willing participants.  So the employer must be willing to discuss the possibility of a resolution. 

The employee’s employment history with the company is also likely going to be taken into consideration.  This includes how long the employee worked there, disciplinary/performance history, position(s) held, and salary.  Employers are generally more willing to offer a more significant monetary settlement to employees who have been with the company for a significant period of time.  If the employee had a history of disciplinary issues, the employer is more likely to take a defensive position with respect to the discrimination claim. 

I am oftentimes told by a client or a potential client that their employer is doing very well and has huge amounts of money in the bank.  The implication is that because the employer has all of this money, they will very willingly part with tens of thousands of dollars in a settlement.  While the employer’s bank account may be something that the employer ultimately takes into consideration in determining whether or not they are willing to pay some amount of money to settle a claim, it really has no bearing on the actual value of an employment discrimination claim.

What can I do to optimize my potential settlement recovery?

One of the smartest things that you can do to best position yourself to settle an employment discrimination claim is to retain an employment attorney to represent you.  It can be invaluable to have someone in your corner who can take an objective look at your claim and provide you with realistic expectations.  Whether you are considering filing a complaint of discrimination, or you have already done so without legal representation, an employment attorney can help you evaluate your claim.  

Employees in Texas are protected from retaliation for objecting to discrimination in the workplace under both Title VII of the Civil Rights Act of 1964 and the Texas Labor Code.  Like complaints of discrimination, if you believe that you are being retaliated against for complaining about discrimination, you must file what is called a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and/or Texas Workforce Commission (TWC). 

Recently, the EEOC released its updated “Enforcement Guidance on Retaliation and Related Issues.”  This document provides extensive information regarding retaliation claims and the statutes that are enforced by the EEOC.  It has also updated the EEOC’s position on a number of more recent legal issues/opinions.

What does it mean to be engaged in ‘Protected Activity’?

Both public and private employers (who have more than 15 employees) in the State of Texas are prohibited from retaliating against an employee who has engaged in what is referred to as ‘protected activity’.  To be considered protected activity, the employee must have complained about or opposed a discriminatory practice.  This can include

• complaining about discrimination to your supervisor or Human Resources department
• filing a charge of discrimination with the EEOC or Texas Workforce Commission
• participating in an investigation (e.g. acting as a witness) of another employee’s complaints of discrimination.

What actions by an employer constitute retaliation?

There is no exhaustive list of each and every employment action that can be considered retaliatory, but these may include probation, suspension, termination, denial of promotion, denial of job benefits, and a transfer to a different position that either has lower pay or is generally less desirable.  Aside from these adverse job-related actions, the retaliatory action could be harassment (verbal or physical behavior) of the employee which is meant to deter the employee from engaging in protected activity.   

It is also very important to consider what facts or evidence support the connection between the employee’s protected activity and the adverse employment action that is taken against that employee.  One piece of information that may support this connection is the timing of the adverse employment action.  The closer in time the adverse employment action is to the protected activity, the easier it is to show the causal connection.  Additionally, there may be oral or written statements by the individual recommending the adverse employment action which support this connection.  Ultimately, you want to be able to show that the employer’s alleged reason for taking the adverse employment action is not truthful. 

What do you do if you are experiencing retaliation in the workplace?

First, gather whatever evidence you may have to support your potential claim of retaliation.  If you decide to pursue a claim of retaliation, you will need to file a Charge of Discrimination with the EEOC and TWC.  But before filing the Charge, you should always contact an employment lawyer to discuss your legal options.  There may be certain actions that an attorney can take to better protect your job (if you are still employed) or better position your legal claim.

While many employers choose to offer vacation and/or sick leave to their employees, there is no general requirement that an employer offer vacation or sick leave to its employees under Texas or federal law.  However, under certain circumstances, an employer may be required by law to provide an employee with leave due to the employee’s own medical condition or to care for a family member who is suffering from a medical condition.  There are also certain legal obligations for employers who do have written vacation and sick leave policies.

If you have recently been terminated, laid off, or resigned, and your employer is refusing to payout your accrued leave, it is important to consult with an employment attorney in your area and read the full article “Vacation and Sick Leave for Employees in Texas.” You may have the right to pursue a breach of contract claim or a wage claim against your employer.