USA – TEXAS Law and Practice Contributed by: Alana Ackels and Katie Beaird, Bell Nunnally & Martin
ment for discriminatory or retaliatory reasons. The details of a discrimination claim are outlined in 8.2 Anti-discrimination . For retaliation, an employer is prohibited from termi - nating an employee because the employee opposed an unlawful employment practice or made a charge, testified in or assisted in an investigation into an unlawful employment practice. This is referred to as “protected activity”. However, not all employment complaints are protected activities that give rise to a retaliation claim. Rather, the complaint, charge or opposition must be about an action that the employee reasonably believed violated an employment law. By way of example: • if an employee reports to HR that they believe they did not receive a promotion because of their race, and points to instances of disparate treat - ment leading up to the promotion, this would likely qualify as protected activity because such alleged discrimination would be unlawful; but • if an employee complains to their boss that a colleague called them a curse word but does not relate the curse word to the employees’ protected class, this would likely not qualify as protected activity because it is not unlawful for a colleague to be rude. After showing they engaged in protected activity, the employee must also show that – “but for” the pro - tected activity – they would not have been terminated. If an employee is successful in proving retaliation, the employee can recover: • the wages and value of benefits the employee would have earned if not for the retaliation; • mental anguish damages; • attorney’s fees; and • punitive damages if the employee can show the discrimination was intentional and malicious. 8.2 Anti-Discrimination Applicants, employees and former employees are protected from employment discrimination based on race, colour, religion, sex (including pregnancy, sexual orientation or gender identity), national origin, age (40
or older), disability and genetic information (including family medical history). For each type of discrimination, the employee must prove a different set of elements. However, most require the employee to show: • that the employee is in one of the protected classes; • that the employee was qualified for the job they had or applied for; • that they experienced an adverse employment action (eg, termination, suspension without pay or severe harassment); and • that the adverse employment action was due to their protected class. Once the employee shows this, the employer must be able to articulate a legitimate, non-discriminatory rea - son for the adverse employment action. If able to do so, the burden shifts back on to the employee to prove that the adverse employment action was in fact due to the employee being in the protected class and not only due to legitimate, non-discriminatory reasons. If an employee is successful in proving discrimination, the employee can recover: • the wages and value of benefits the employee would have earned if not for the adverse employ - ment action; • mental anguish damages; • attorney’s fees; and • punitive damages if the employee can show the discrimination was intentional and malicious. 8.3 Digitalisation Since the pandemic, the manner in which employ - ment disputes play out in Texas has remained almost unchanged. Although Texas courts may entertain cer - tain preliminary hearings via video conference, most are requiring all hearings and proceedings to be con - ducted in person, including the final trial. Even in arbi - tration, discussed further in 9.2 Alternative Dispute Resolution , arbitrators are requiring final hearings to be conducted in person. However, courts and arbi - trators alike are increasingly approving certain out- of-town witnesses to testify remotely by video con -
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