An employer or manager may not fire, demote, harass, or otherwise retaliate against a job applicant or employee for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. When the retaliation results in discharge or termination of the employee it is known as retaliatory discharge.
The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.
The equal employment opportunity (EEO) laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. Asserting these EEO rights is called protected activity and it can take many forms. For example, it is unlawful to retaliate against applicants or employees for:
• filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
• communicating with a supervisor or manager about employment discrimination, including harassment
• answering questions during an employer investigation of alleged harassment
• refusing to follow orders that would result in discrimination
• resisting sexual advances or intervening to protect others
• requesting accommodation of a disability or for a religious practice
• asking managers or co-workers about salary information to uncover potentially discriminatory wages.
Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws—even if the employee did not use legal terminology to describe it.
Engaging in EEO activity, however, does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. But an employer is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.
For example, depending on the facts, it could be retaliation if—in response to an employee’s EEO activity—an employer:
• reprimands the employee or gives a performance evaluation that is lower than it should be;
• transfers the employee to a less desirable position;
• engages in verbal or physical abuse;
• threatens to make, or actually makes reports to authorities (such as reporting immigration status or contacting the police);
• increases scrutiny;
• spreads false rumors, treats a family member negatively (for example, cancels a contract with the person's spouse); or
• makes the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).
What activity is protected by the prohibition against retaliation?
An employee engages in protected activity when the employee: (1) opposes a practice they consider to be discriminatory; (2) participates in an employment discrimination proceeding; or (3) engages in other protected activity.
• Opposing Discrimination: Opposing a discriminatory practice consists of communicating to the employer a reasonable, good-faith belief that the employer is engaging in prohibited discrimination. Examples of opposition include complaining to anyone about alleged discrimination against oneself or others; threatening to file a complaint alleging discrimination; picketing in opposition to discrimination; or refusing to obey an order reasonably believed to be discriminatory. Examples of employee activities that are not protected as opposition include actions that interfere with job performance so as to render the employee ineffective, or unlawful activities such as acts or threats of violence.
• Participating in an employment discrimination proceeding: Participation means taking part in an employment discrimination proceeding. Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include filing a charge of employment discrimination; cooperating with an internal investigation of alleged discriminatory practices; or serving as a witness in an EEO investigation, lawsuit, or other legal proceeding.
• Other Protected Activity: Additional protected activity includes requests for an accommodation based on disability or religion.
Which individuals are covered by this protection?
Covered individuals are persons who have requested accommodations, opposed unlawful practices, or participated in proceedings related to employment discrimination based on race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, or genetic information. Protections are also extended to individuals based on sexual orientation and parental status pursuant to Executive Order and Department of Labor policy.
Individuals who have a close association with someone who has engaged in such protected activity are also covered individuals. For example, it is illegal to take adverse action against an employee because his spouse participated in employment discrimination proceedings.
Individuals who have brought attention to violations of law other than employment discrimination are not covered individuals for purposes of anti-discrimination retaliation laws. Individuals may have recourse under the anti-retaliation provisions of those other laws, but not under the laws enforced through the federal EEO process. For example, “whistleblowers” who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by federal employment discrimination laws.
What is an adverse action prohibited by EEO statutes, regulations, or policies?
An adverse action is an action taken to penalize someone for or prevent someone from opposing a discriminatory employment practice; participating in an employment discrimination proceeding; or requesting an accommodation based on disability or religion. Such an action could form the basis of a new EEO complaint.
Examples of adverse actions include: (1) denial of promotion; (2) non-selection/refusal to hire; (3) denial of job benefits; (4) demotion; (5) suspension; (6) discharge; (7) threats; (8) reprimands; (9) negative evaluations; (10) harassment; or (11) other adverse treatment that is likely to deter reasonable people from pursuing their rights.
In Texas, as in other states, it is illegal for employers to retaliate against employees or job applicants who engage in protected activities under Equal Employment Opportunity (EEO) laws. Protected activities include filing a complaint of discrimination, participating in a discrimination proceeding, or opposing discriminatory practices. Retaliation can take many forms, such as termination, demotion, harassment, or any other action that would dissuade a reasonable person from making or supporting a discrimination claim. This protection extends to all individuals who oppose practices they reasonably believe to be discriminatory, participate in discrimination proceedings, or request accommodations for disabilities or religious practices. The laws cover discrimination based on race, color, sex, religion, national origin, age, disability, genetic information, sexual orientation, and parental status. If an employer in Texas takes adverse action against an employee because of their involvement in protected EEO activities, the employee may have grounds to file a retaliation claim. Employers are still allowed to discipline or terminate employees for legitimate, non-retaliatory reasons unrelated to the employee's EEO activity.
