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Can an employee have a retaliation claim in Texas even if the sexual harassment or discrimination is not sufficiently severe or pervasive under Texas law?

Often Texas employers argue that even though the employer retaliated against the employee, the retaliation claim fails because the sexual harassment claim was insufficient as a matter of law. However, courts in Texas have held that a retaliation claim survives even if the sexual harassment or discrimination complaint fails if the employee has a reasonable belief that the employer harassed or discriminated against her.

Even if a Court finds that a complaining person’s sexual harassment or discrimination allegations are insufficient as a matter of law because they were not sufficiently severe or pervasive, this holding does not mean that person’s complaints and filings were not a protected activity. See Ordogne v. AAA Tex., LLC, 2011 U.S. Dist. LEXIS 32019, 27-28 (S.D. Tex. Mar. 28, 2011) (finding that even though the record showed Plaintiff’s work environment was not hostile as a matter of law, there is a fact issue as to whether there was a reasonable belief that her employer discriminated against her); Foster v. Solvay Pharms., 160 F. App'x 385, 388-389 (5th Cir. Dec. 23, 2005) (finding that an employee's email to human resources stating that he believed an executive's selection of a male over a female for a company award constituted gender discrimination was a protected activity and also finding that there was no evidence that his complaint resulted in an adverse employment decision); Long v. Eastfield College, 88 F.3d 300, 305-06, 308-09 (5th Cir. 1996) (finding that the plaintiff's complaint about a supervisor's treatment was a protected activity while finding no hostile work environment); Beckham v. Construction Materials, Inc., 2005 U.S. Dist. LEXIS 32418, 2005 WL 2177247, at *7 (W.D. La. Sept. 8, 2005) (finding that a complaint to human resources about an inappropriate comment was a protected activity and also finding that there was no evidence of a causal connection between the complaint and the termination of the plaintiff's employment).

A prima facie case of retaliation consists of: (1) the plaintiff engaging in a protected activity; (2) an adverse employment action; and (3) a causal connection that exists between the protected activity and the adverse employment action. LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). An employee has engaged in a “protected activity” if she has either (1) opposed any employment practice made unlawful by Title VII or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Title VII. Grimes v. Tex. Dept. of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). An adverse employment action is one that would dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

Given the minimal burden to present a prima facie case, Guthrie v. Tifco Indus., 941 F.2d 374, 377 (5th Cir. 1991), if a person can identify sufficient evidence to show she was engaging in a protected activity and that she subjectively and objectively had a reasonable belief that the employer violated the sexual harassment or discrimination policy, then the retaliation claim survives under Texas law.

So, if you are a Texas employee who suffered retaliation for making a complaint or claim that you reasonably believed was sexual harassment or other form of discrimination, you may have a claim for retaliation even if your sexual harassment or discrimination claim fails. 

Jim M. Zadeh
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