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Texas has a history of being an employer-friendly state; however, federal and state laws prevent employers from illegal harassment, discrimination, and retaliation in the workplace. Employers are not legally allowed to hold certain personal characteristics against their employees. There are federal and state laws that protect workers from being treated differently based on traits including their race, color, disability, religion, sex, national origin, or age. Both discrimination and harassment protections are available for these categories in Texas, but what is the difference between the two? And what constitutes employer retaliation once discrimination or harassment is reported? Employment law can be complex and may require legal counsel to decode and apply appropriately in the workplace.

What is the difference between harassment and discrimination?

People often use the terms “discrimination” and “harassment” interchangeably to refer to unfair or potentially illegal treatment in the workplace, but there are distinct legal differences between the two. Discrimination in the workplace occurs when an employer or a coworker treats employees with certain characteristics differently strictly based on the employee having those characteristics. This means that the actions taken against the employee have concrete and negative effects on their employment experience. Employers and coworkers cannot take adverse actions against an employee or deny employment to a potential employee because of their membership in a protected class. When an employer or coworker discriminates against an employee, the employer can be held liable as the harm caused directly stems from their behavior or that of their other employees.

Harassment is considered targeted unwelcome conduct in the workplace based on an employee’s membership in a protected class. This conduct is serious enough to interfere with an employee’s ability to do their job. This does not mean a coworker is just saying mean things to another employee, it must be severe and pervasive unwelcome conduct that creates a hostile work environment based on the employee’s membership in their protected class. Harassment can also include “quid pro quo” propositions in which a supervisor or manager conditions a promotion, continued employment, or other employment benefits on submitting to inappropriate conduct. When an employee is harassed, the harasser may be held personally liable and can be sued whether or not the employer knows the harassment has taken place.

What is retaliation?

Retaliation is a form of workplace discrimination that can occur after an employee reports harassment or discrimination in the workplace to their supervisor if that individual takes adverse employment actions against that employee. The U.S. Supreme Court defines “adverse employment actions” as any action that would be enough to dissuade an employee from making a complaint of harassment or discrimination. In other words, any action taken by the employer to punish the employee for making a claim or opposing an employer’s unlawful activity is illegal.

Some examples of illegal retaliation include:

• Firing the employee because they filed a complaint
• Transferring the complaining employee to a different location or department as punishment
• Reducing the employee’s salary
• Denying or purposely delaying a promotion or raise
• Punishing an employee for taking leave under FMLA
• Giving an employee less favorable work tasks
• Treating the employee differently than others
• Forging a poor performance evaluation even though the employee performs well
• Punishing an employee for filing a workers’ compensation claim

While retaliation is illegal, the Equal Employment Opportunity Commission (EEOC) reports that retaliation is the most common issue alleged by federal employees and it is the most common form of discrimination in federal sector cases. Retaliation is often an emotional response to reports of harassment or discrimination and must be avoided to protect a company from serious lawsuits.

What laws govern discrimination, harassment, and retaliation?

• Title VII of the Civil Rights Act of 1964: This law makes it illegal to discriminate against an employee or new hire on the basis of race, color, religion, national origin, or sex. This law also protects employees against retaliation for filing a claim regarding discrimination in the workplace.
• The Pregnancy Discrimination Act: This Act added an amendment to Title VII expanding its protections regarding “sex” to include prohibiting sex discrimination based on pregnancy, giving birth to a child, and/or having a medical condition related to pregnancy or childbirth.
• The Equal Pay Act of 1963 (EPA): This law prohibits sex-based wage discrimination between men and women who perform the same job in the same workplace.
• The Age Discrimination in Employment Act of 1967 (ADEA): This law protects employees or future employees who are 40 years old or older from discrimination in the workplace based on their age.
• Title I of the Americans with Disabilities Act of 1990 (ADA):  This law makes it illegal to discriminate against a qualified person with a disability in a way that prevents them from being employed and/or during their employment.
• The Genetic Information Nondiscrimination Act of 2008 (GINA): This law protects employees against discrimination based on genetic information, DNA tests, or family medical history.

Texas Law Effective September 1, 2021 – Limitation of Size Requirement

New legislation now amends to the Texas Labor Code. Prior to the amendments, only employers with 15 or more employees could be held liable for workplace sexual harassment claims. For such claims, the Texas Labor Code now defines an “employer” as a person who “employs one or more employees.” Now, any Texas employer can be held liable under the State Labor Code for sexual harassment. The federal law, Title VII still requires 15 employees.

The definition of employer now broadly defines an “employer” to include any person who “acts directly in the interests of an employer in relation to an employee.” In other words, the new State law now permits lawsuits against individuals. There are neither court cases, nor analyses by administrative agencies of the expanded definition of “employer.” Now, anyone acting on behalf of the employer can be sued. This will likely include co-workers, human resource professionals, supervisors, officers, directors, and managers. In the past, Texas did not allow lawsuits against individuals for sexual harassment. Supervisors need to be educated and trained on procedures to avoid meritless claims against them for sexual harassment.

Additionally, the new law requires employers to address sexual harassment claims immediately. The law defines “unlawful employment practice” occurs if there is sexual harassment of an employee and the employer or its agents or supervisors: “(1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” Interestingly, the law does not define what “immediate and appropriate corrective action” means.

Under 21.141 “sexual harassment” is defined as an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if: (1) submission to it is explicitly or implicitly made a term or condition of an individual’s employment; (2) submission to or rejection of it is used as the basis for a decision affecting the individual’s employment; (3) it unreasonably interferes with an individual’s work performance; or (4) it creates an intimidating, hostile, or offensive working environment.

Finally, in the past, employees had 180 days to file a charge against the employer. For sexual harassment claims occurring on or after September 1, 2021, the new law extends that deadline to 300 days. The 180-day deadline still applies to other forms of discrimination other than sexual harassment.

Preventing and Mitigating the Effects of Employee Allegations

Employees are increasingly coming forward to report harassment, discrimination, and retaliation by a manager, coworker, faculty member, student, or others. All organizations should try their hardest to foster an environment that is respectful and intolerant of discrimination or harassment. Taking preventive measures, such as implementing strong anti-harassment policies which includes “immediate” investigation, creating an effective complaint process, and providing appropriate training to all employees, is key to achieving a stress-free workplace and mitigating the costs associated with employee allegations of misconduct. Additionally, employers need to provide additional training to supervisors explaining the policies and the possibility of individual liability.