Texas has been an at-will employment state since the 19th century: an employer is free to fire an employee at any point, for any reason, including no reason at all. This does not mean any and all employee terminations are legal, however. Both federal and state law provide exceptions to Texas’s employment-at-will rule.
In Texas, it is unlawful to fire a private employee for the following reasons:
Contract Violation: An employment agreement may stipulate conditions to employment termination, like requiring notice. At-will employment state or not, Texas employers (and employees) are still beholden to terms of their employment contracts.
Discrimination: A combination of federal and Texas State law prohibits firing an employee on the basis of a protected characteristic.
Refusal to Commit Illegal Acts: Under Texas common law, an employee cannot be fired for refusing to commit a crime.
Retaliation: An employee cannot be fired for engaging in a protected activity, such as filing a discrimination complaint with the EEOC, or exercising certain rights, like taking FMLA leave.
Exception to At-Will Employment: Workplace Retaliation
Private employees in Texas are protected against workplace retaliation under multiple federal and state laws. These legal frameworks vary in how they define (1) protected activity, (2) unlawful retaliation, and (3) available remedies. Different frameworks also carry unique procedural requirements, like deadlines.
Defining Retaliation in Texas Employment
What constitutes unlawful retaliation differs depending upon the legal framework involved (e.g. USERRA, FMLA, or Title VII). But in general, unlawful retaliation occurs when three conditions are met:
- Protected activity: The employee engaged in a protected activity;
- Adverse Action: The employee suffered a materially adverse employment action as a consequence; and,
- Causal Link: The employee’s protected activity motivated the employer to take adverse employment action.
Protected Activities for Texas Employees
A protected activity refers to an employee’s legal or statutory right to engage in a particular activity without fear of retaliation by their employer. Even in at-will employment states like Texas, it is unlawful for an employer to fire an employee because they carried out a protected activity or exercised a right provided by law.
The following legal frameworks establish protected activities for Texas employees as well as the employer actions that constitute unlawful retaliation.
| Legal Framework | Protected Activity |
| Title VII of the Civil Rights Act of 1964
(42 U.S. Code § 2000e) |
|
| Texas Commission on Human Rights Act (TCHRA)
(Tex. Lab. Code § 21.055) |
|
| Americans with Disabilities Act (ADA) |
|
| Fair Labor Standards Act (FLSA) |
|
| Family and Medical Leave Act (FMLA) |
|
| USERRA |
|
Adverse Employment Action
An adverse employment action is an action taken by an employer that would deter another reasonable employee from engaging in the protected activity in question. Adverse actions carry significant negative consequences for an employee, such as impacting an employee’s opportunities to advance, pay, core job duties, rank, or ability to find employment elsewhere.
Termination is a paradigmatic example, but other adverse employment actions which may qualify as unlawful retaliation include:
- Demotion
- Passing over for promotions
- Failing to hire
- Wage/salary reduction
- Cutting hours
- Negative performance evaluations
For an adverse action to qualify as unlawful retaliation, there must be a cause–effect connection between the protected activity and the adverse action. At minimum, the employer must have been aware of the employee’s protected activity.
The following scenarios may qualify as retaliation and unlawful termination in Texas:
USERRA: An employee at a Houston company is fired for using unapproved flex time. However, no previous performance evaluations made this an issue, and other coworkers have used even more unapproved flex time with no negative consequences. Two weeks previously, the employee served as a witness in a coworker’s USERRA discrimination investigation.
TCHRA: A long-time employee at an Austin department store shares news of her pregnancy with her coworkers. Despite a lack of performance issues, she is fired because of her supervisor’s concerns that she “won’t be able to keep up with the holiday rush.” Later, the supervisor claims it was because of restructuring.
ADA: An employee at an Austin marketing firm is diagnosed with an autoimmune condition; the treatment prescribed significantly weakens the immune system for several weeks out of the year. The employee requests reasonable accommodations to work from home during these periods, but is denied because it would pose an undue burden to the business. After respectfully pointing out that a coworker in the same job was permitted to work from home for two weeks after breaking a leg, the employee is fired for “not being a team player.”
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Potential Remedies: What is my retaliation case worth?
The remedies available for retaliation lawsuits in Texas vary significantly between legal frameworks. It is not uncommon for retaliation cases to end in settlement. However, if your retaliation case does go to court, some potential remedies include the following:
Reinstatement or promotion: Reinstatement to your previous position, or promotion to the higher position you were denied previously.
Compensatory damages: Future pecuniary losses, emotional pain and suffering, mental anguish, loss of enjoyment of life.
Punitive damages: If an employer’s violation was willful and highly negligent, the Judge may award punitive damages.
Leave: Any leave used because of the retaliation may be restored or paid out.
Attorney fees: The employer may be ordered to pay the employee’s reasonable attorney fees.
Training: Management may be ordered to undergo training (e.g. discrimination prevention).
Note: Not all remedies are available under all legal frameworks. Additionally, damages may be available but limited by statute. For example, compensatory and punitive damages are capped under the TCHRA by employer size as follows:
TCHRA Statutory Cap on Compensatory and Punitive Damages
| # of Employees | Maximum Award |
| 15 – 100 | $50k |
| 101 – 200 | $100K |
| 201 – 500 | $200K |
| 500 or more | $300k |
The TCHRA’s statutory cap does not limit equitable relief, which may include back pay, interest on back pay, and front pay.
Texas employment is subject to laws and regulations that differ significantly from those in other states. Consulting with a Texas employment lawyer can make all the difference. Tully Rinckey’s team of dedicated employment attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.
Paul Friener is the Managing Partner of Tully Rinckey PLLC’s Austin, TX, office, where he focuses his practice on labor and employment law. Prior to joining Tully Rinckey, Paul was a supervising attorney at Legal Aid of NorthWest Texas, where he supervised the Legal Aid for Survivors of Sexual Assault (LASSA) division and was a team leader for the Immigration Practice team. His employment law experience includes representing employees who have been subjected to discrimination, harassment, or retaliation in connection to their legally protected class and legally protected activity, including whistleblower retaliation actions. As an employee advocate, Paul represents federal and Texas employees regarding their legal issues in the workplace.
This article is for informational purposes only. Its content is not intended to constitute endorsement or legal advice, nor does it establish a client-lawyer relationship with Tully Rinckey PLLC or any of its affiliates.
