Retaliation

The laws that prohibit employment discrimination and harassment also make it illegal for an employer to retaliate against an individual for complaining of discrimination.  Employers are also prohibited from retaliating against an individual for his or her involvement in a employment discrimination proceeding, such as testifying in a lawsuit or participating in an investigation related to a discrimination complaint.  Actions that may be considered unlawful retaliation, include:

  • Failure to hire or rehire;
  • Blacklisting;
  • Intimidation;
  • Making threats;
  • Reduction in pay;
  • Refusal to provide overtime;
  • Failure to promote;
  • Demotion;
  • Discipline; and
  • Termination.

In addition to the laws governing employment discrimination and harassment, there are a variety of other laws that specifically prohibit retaliation, including:

Section 451 of the Texas Labor Code

  • Prohibits retaliation against an employee because the employee filed a worker’s compensation claim, hired a lawyer to represent the employee in a claim, or offered testimony related to a worker’s compensation claim.
 The Family and Medical Leave Act of 1993 (FMLA)
  • Assuming certain conditions are met, the FMLA provides employees with up to 12 weeks of unpaid leave during a 12 month period for the birth of a child, to care for a newborn child, a serious health condition, or to care for the employee’s spouse, child or parent who has a serious health condition.
  • The FMLA also prohibits employers from retaliating against employees who exercise their rights under the FMLA.
The Occupational Safety & Health Act (OSH Act)
  • Prohibits employers from retaliating against employees who complain to the Occupational Safety and Health Administration (OSHA) or any other government agency about workplace safety or health hazards.
  • OSH Act also prohibits employers from retaliating against an employees because the employee participated in and OSHA inspection, investigation, or other OSHA related activities.

Sabine Pilot v. Hauck, 687 S.W. 2d 733 (Tex. 1985)

  • In 1985, the Supreme Court of Texas recognized an exception to the “employment at will” doctrine in Texas.
  • The Court held that an employer cannot retaliate or terminate an employee for refusing to commit an illegal act.
Sarbanes-Oxley Act (SOX)
  • Employees who work for publicly traded companies or companies that are required to file certain reports with the Securities and Exchange Commission (SEC) are protected from retaliation for reporting alleged mail, wire, bank, or securities fraud; as well as violations of SEC rules and regulations.
False Claims Act
  • Provides individuals may file an a “qui tam” action on behalf of the government against any party who attempts to defraud the government.
  • For example, qui tam actions may be filed to impose liability against persons or companies involved in health care or military contracts who defraud the government.
  • The False Claims Act also prohibits employers from retaliating against an individual because the individual was a whistleblower.

Caycedo Law, P.C. is experienced in representing individuals who have suffered from retaliation.  If you feel you have been subjected discrimination or harassment, or if you are just seeking advice and counsel regarding your rights, contact our office to schedule an appointment.