Dallas Employment Lawyer Blog
Many employees hesitate before reporting discrimination because they are worried about what will happen next. Will their supervisor start treating them differently? Will they suddenly receive negative performance reviews? Will their hours change? Could they lose their job?
Federal employment discrimination laws contain anti-retaliation protections designed to protect employees who assert certain workplace rights. But not every workplace complaint is legally protected, and not every unpleasant action that follows a complaint is unlawful retaliation. Understanding the distinction can be important for employees deciding how to address discrimination at work.
What Is Protected Activity?
Title VII of the Civil Rights Act of 1964 prohibits retaliation against an employee because the employee opposed a practice made unlawful by Title VII or because the employee made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing. The statute is available here: https://www.law.cornell.edu/uscode/text/42/2000e-3
Protected activity generally falls into two categories: participation and opposition.
Participation may include filing an EEOC charge, serving as a witness, or otherwise participating in an EEO proceeding. Opposition can be less formal. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), protected opposition may include communicating with a supervisor about employment discrimination, answering questions during an investigation of alleged harassment, resisting sexual advances, or refusing to follow an order reasonably believed to be discriminatory.
An employee does not necessarily need to use legal terms such as “Title VII” or “unlawful discrimination” when raising a concern. However, in the opposition context, the circumstances should make reasonably clear that the employee is objecting to conduct the employee reasonably and in good faith believes violates employment discrimination law. More information about protected activity is available from the EEOC here: https://www.eeoc.gov/retaliation
This distinction matters. Complaining that a supervisor is unfair, rude, or a bad manager, without connecting the complaint to conduct prohibited by an employment discrimination law, does not automatically make the complaint protected activity under Title VII.
What Can Retaliation Look Like?
Termination is an obvious example of a potentially retaliatory action, but retaliation is not limited to being fired.
In Burlington Northern & Santa Fe Railway Co. v. White, the U.S. Supreme Court explained that Title VII’s anti-retaliation provision is not limited to actions affecting the terms and conditions of employment. The question is whether the challenged action is materially adverse—meaning, in context, that it might dissuade a reasonable worker from making or supporting a discrimination charge. The decision is available here: https://www.law.cornell.edu/supct/html/05-259.ZO.html
Depending on the circumstances, materially adverse actions may include a demotion, suspension, undesirable reassignment, reduced opportunities, increased scrutiny, or other significant treatment that could deter a reasonable employee from asserting protected rights. Petty slights and trivial annoyances generally are not enough.
Timing Matters, But It Is Not Everything
Employees often become concerned when something negative happens soon after they complain. Timing can be relevant evidence, but timing alone does not necessarily establish retaliation.
A Title VII retaliation claim ultimately requires a causal connection between the protected activity and the materially adverse action. In University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court held that a plaintiff asserting Title VII retaliation must prove that the protected activity was a “but-for” cause of the challenged employment action. The Court’s decision is available here: https://www.law.cornell.edu/supremecourt/text/12-484
The surrounding facts therefore matter. For example, an employee may want to consider whether treatment changed after the complaint, whether the employer departed from its usual practices, whether explanations for an employment decision changed, and how similarly situated employees were treated. No single fact automatically proves retaliation, and each case depends on its own circumstances.
A Complaint Does Not Make an Employee Immune From Discipline
Anti-retaliation laws do not prevent employers from addressing legitimate performance or misconduct issues simply because an employee has complained about discrimination. The EEOC expressly recognizes that employees who engage in protected activity still must perform their jobs and follow legitimate workplace rules.
The legal issue is why the employer acted. An employer may take action for legitimate, non-retaliatory reasons. It may not take materially adverse action because an employee engaged in activity protected by the applicable anti-retaliation law.
Document What Happens
If you believe your workplace changed after you reported discrimination, preserving information can be important. Keep track of when you complained, who received the complaint, what you reported, and what happened afterward. Preserve relevant communications and employment records that you are lawfully entitled to keep. Avoid taking confidential or proprietary company information you are not entitled to possess.
Retaliation cases are highly fact-specific. A change that appears minor in isolation may have different significance when viewed alongside the timing, the employer’s explanations, and the employee’s history before and after the complaint.
If you believe your employer retaliated against you after you reported discrimination or exercised protected workplace rights, contact me or one of my colleagues at Rob Wiley, P.C. in Dallas to discuss your situation: https://www.dallasemploymentlawyer.com/contact-us/ . Our colleagues in Austin and Houston are also available to speak with Texas employees about workplace concerns: https://www.texasemploymentlawyer.com/contact/