Retaliation is perhaps the broadest area of employment litigation. This is because it happens so often. But on a more positive note, it is also because there are so many employment laws that protect people from retaliation. In contrast to abstract concepts like “discrimination,” the idea of “revenge” is well-understood by everybody. For this reason judges and juries are more likely to find the existence of retaliation far more often than they are likely to find the existence of discrimination. There are dozens of laws that prohibit retaliation, but the most commonly litigated retaliation cases involve employees being fired for doing the following things:

Opposing Employment Discrimination
Refusing to Perform an Illegal Activity
Reporting a Violation of Law by Governmental Entity
Reporting Nursing Home Abuse or Neglect
Taking FMLA Leave

Contact The Cole/Reichek Firm if you believe that your rights have been violated under any anti-retaliation statute.

Opposing Employment Discrimination

Probably the most far-reaching statutes that protect employees from retaliation are the civil rights statutes.  For example, Title VII of the Civil Rights Act of 1964 (Title VII), the Texas Commission on Human Rights Act (TCHRA), and 42 U.S.C. §1981 as interpreted not only protect employees from discrimination based on race, national origin, color, and ethnicity, but they also protect employees from retaliation for standing up to discrimination on these bases.  Similarly, Title VII and the TCHRA prohibit retaliation for opposing sex discrimination and religious discrimination, the Age Discrimination in Employment Act (ADEA) and the TCHRA prohibit retaliation for opposing age discrimination, the Americans with Disabilities Act (ADA) and the TCHRA prohibit retaliation for opposing disability discrimination.

This area of the law is constantly evolving, but over the years the courts have addressed a few important themes within this area of law.  First, they have addressed the matter of what constitutes “protected activity” within the meaning of these statutes.  Generally speaking, in order to fall within the protections afforded by these statutes, an employee’s opposition to discrimination must meet certain requirements.  First, only certain reporting activity is “protected” by these statutes.  It is illegal for your employer to retaliate against you because you filed a charge of discrimination with the Equal Employment Opportunity Commission, the Texas Workforce Commission – Civil Rights Division, or any other Fair Employment Practices agency.  Second, your employer cannot retaliate against you because you complained to your employer about discrimination.  Third, your employer cannot retaliate against you because you participated in an employment discrimination proceeding, such as an investigation or lawsuit.

There are certain points that are important to know when it comes to retaliation lawsuits.  First, you may have a viable claim for retaliation even though the underlying discrimination you complained about is not determined to, in fact, be discrimination.  The law requires only that you opposed conduct that you “reasonably believed” to be discriminatory.

Second, much attention has been given to the matter of what, exactly, an employee must say to her employer to rise to the level of protected activity under these statutes.  Certain statements have statutory protection and some do not.

Third, the courts are split on the proper standard of causation for retaliation claims.  Some courts require you to prove that your opposition to discrimination was the only reason for your termination, while others require employees to prove only that the oppositional conduct was a “motivating factor” in the employer’s decision to terminate your employment.  Which standard a court will apply in your case may unfortunately depend on where your case is filed.

This area of the law is tricky.  It is important that you consult with an attorney that is well-versed in retaliation law to determine whether you engaged in conduct that is protected under these laws, the likelihood that you will be able to satisfy the applicable causation requirement, and the remedies available to you for your employer’s violation of these statutes.

Refusal to Perform an Illegal Activity

Generally, Texas is what is known as an employment at will state.  This means that under most circumstances, your employer is free to terminate you for any reason at all.  One well-founded exception to this rule is called the “Sabine-Pilot” doctrine.  The Sabine Pilot exception to employment at will prohibits employers from discharging employees for the sole reason that the employee refuses to perform an illegal act.  This is a very narrow exception.  In order to establish a violation under Sabine Pilot, you must show that your refusal to perform an illegal act is the only reason for your termination.  If your employer can prove that there was another reason motivating the decision to terminate you, your employer will not be liable under this common-law exception to employment at will.  Another important feature of a Sabine Pilot cause of action is that the illegal act you refused to perform must be a violation of criminal law, and the penalty for the commission of the crime must include imprisonment.

It is important to understand what Sabine Pilot does and does not do.  Sabine Pilot does protect an employee from being fired because she refused to perform an illegal act.  It does not protect an employee from being fired because the employee reports an illegal act.  Unbelievably, there is no statutory or common-law exception to the employment at will doctrine that protects private employees from retaliation who report illegal activities of their employer.  The Texas Whistleblower Act, however, does prohibit retaliation against public employees who report illegal activities of their governmental employer under certain circumstances.

Sabine Pilot cases are rare, and the circumstances under which a Sabine Pilot claim can be alleged are narrow.  It is important that you consult with an experienced labor and employment attorney who can analyze your chances of succeeding on a Sabine Pilot claim.

Reporting a Violation of Law by Governmental Entity

There is scant protection for whistleblowers in Texas employment law.  One exception, however, is the Texas Whistleblower Act.  This statute begins at Section 554.001 of the Texas Government Code, and prohibits a governmental employer (like a city, county, or the state) from terminating an employee who in good faith reports a violation of law by the employer or another public employee to an appropriate law enforcement authority.

The Texas Whistleblower Act requires that you have a subjective belief that your employer or an employee violated a law.  The law also requires that this belief be objectively reasonable.  The “law” that you believe to have been violated includes a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance.  In some circumstances, a city charter may also be considered a “law” within the meaning of the Texas Whistleblower Act.

The most difficult aspect of the Texas Whistleblower Act is determining whether an employee reported the violation to an “appropriate law enforcement authority” within the meaning of the statute.   A report is made to an appropriate law enforcement authority if the authority is 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; or (2) investigate or prosecute a violation of criminal law.  Generally, internal reports are not considered to be a “report to appropriate law enforcement authority.”

There are important, fairly tight, deadlines associated with claims under the Texas Whistleblower Act.  For this reason it is imperative to meet with an experienced labor and employment attorney as soon as you learn that your rights may have been violated under the statute.

Reporting Nursing Home Abuse or Neglect

Nursing home residents are some of the most vulnerable people in Texas.  They are wholly dependent on nursing home employees for their care and well-being, and they are often unable to advocate for themselves because of advanced health problems.  For this reason the Texas Legislature protected employees of nursing homes from retaliation who report suspected abuse or neglect of nursing home residents.

Texas Health & Safety Code §242.133 provides that an employee has a cause of action against an institution, or the owner or another employee of the institution, that suspends or terminates the employment of the person or otherwise disciplines or discriminates or retaliates against the employee for reporting to the employee’s supervisor, an administrator of the institution, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of Chapter 242, or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the institution.

Employees proceeding under this law have a built-in advantage if they were terminated within sixty days of standing up for resident abuse or neglect.  They also have a panoply of damages available to them for enforcing their rights under this statute, including back pay and front pay, damages for mental anguish, damages to punish the nursing home and deter them from engaging in this conduct again, attorneys fees and costs.  Unlike some other statutes, these damages are not capped at a certain amount.

The Reichek Firm has had recent success litigating these types of cases, and is actively seeking more.

Taking FMLA Leave

The Family Medical Leave Act (FMLA) gives employees the right to take up to twelve weeks of unpaid leave per year to care for a new child, to care for a seriously-ill family member (spouse, child or parent), to recover from a worker’s own serious illness, to care for an injured servicemember in the family, or to address qualifying exigencies arising out of a family member’s deployment.  If your leave qualifies under the FMLA, you are entitled to restoration to the same or substantially the same position upon return to work, protection of your benefits while on leave, and protection of your rights not have their rights under the Act interfered with or denied by an employer.

Not only does the FMLA create these entitlements, but it also prohibits your employer for retaliating against you based on your opposition to your employer’s interference with or denial of your right to take FMLA leave.

Even though the FMLA is a powerful statute it has some limitations.  Not every employee is eligible for FMLA protection, and not every employer has to comply with the FMLA.  The FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

To be eligible for FMLA benefits, you must have worked for your employer for at least twelve months, you must have worked at least 1,250 hours over the previous twelve months, and you must work at a location where at least fifty employees are employed by your employer within seventy-five miles.