Dallas Employment Lawyer Blog
Dallas Employment Trial Lawyer Austin Campbell
Summary: This blog briefly goes over the “adverse action” standard in Texas and some recent changes in the law in that area. It then focuses on the question of whether you should wait for an adverse action to happen before talking to a lawyer about your rights.
Roughly speaking, employment law in Texas is centered around what are called “adverse actions”: you can seek legal redress from your employer if you can identify some harm it caused to the terms or conditions of your employment. Of course, that is separate from the critical question of why the employer did what it did, and whether that why was illegal.
I previously wrote a blog on how Texas employees no longer need to prove they suffered an “ultimate employment action” or financial harm to establish they were discriminated against. And retaliation claims are subject to an even lower bar for adverse actions, requiring only the employee show the employer took a “materially adverse” action that would (or could) dissuade a reasonable person from engaging in legally protected activity.
And of course, if you are experiencing ongoing workplace harassment there might not be one specific instance of “harm” you can point to easily. Harassment claims are subject to a unique framework in which you generally must prove you were subjected to “severe or pervasive” harassment based on a protected category. Although, the reasoning behind the Supreme Court and Fifth Circuit cases that threw out the “ultimate employment action” doctrine arguably ought to throw that harassment standard out as well.
Exactly what fits these standards is going to depend heavily on the circumstances. But adverse actions are clearly not limited to just being fired or demoted. That said, from a practical standpoint it is helpful if an employee’s lawyers have the ability to mathematically calculate some concrete financial harm caused by an adverse action. The reason for that is that Texas courts are largely fixated on “damages” (awards of money) when it comes to employment claims.
So then the question is, should you wait until you have some concrete financial harm before talking to a lawyer about your rights? Generally speaking, no. Now, most people who come to us for consultations have just been fired, so it’s easily for us to do the math. But coming to talk to a lawyer before that point, if you see the writing on the wall, may allow you to make much better and more informed decisions.
On the other hand, coming to a lawyer “too early” may limit our ability to represent you, or what we can even do if we can represent you. Mildly, it’s harder to pursue legal claims based on hypothetical things that haven’t yet happened. And pursuing a claim where we cannot point to a specific adverse action may be difficult from a practical standpoint. Similarly, when it comes to harassment claims, it is helpful if you can point to some severe “final straw” that has you coming to a lawyer. Texas is ultimately an at-will employment state that affords employers a great deal of freedom. The question is, can we even get the employer to do what you want in the circumstances you have brought to our attention? So, if you’re coming to talk to a lawyer hoping to take immediate action, it is helpful if you can point to something very concrete as a harm, even if that is not legally required.
If you believe your employer has or is about to take adverse action against you, you may want to talk to an employment lawyer like those at Rob Wiley, P.C.