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.   

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.