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What qualifies as employment discrimination or wrongful termination in Texas?

Many employees who have been fired feel they have been “discriminated” or “retaliated” against and want to sue for wrongful termination. However, there are only a handful of terminations that are truly unlawful, such as those based on one’s sex, race, disability, age (if over 40), religion, color, or national origin. Or those who have been retaliated against based on engaging in a protective activity (such as complaining about harassment or possible discriminatory treatment based on one of the above reasons, or complaining about wage or overtime (FLSA) violations, and a few others). There are also some professions that have special protections against retaliation and discrimination, such as for nurses.  Texas also has a judicially created law (“Sabine Pilot”) that prevents employees from being fired for refusing to commit a criminal act.  But many seemingly inappropriate actions by employers are not necessarily illegal. Examples:

  • “I was accused of doing something wrong. But I didn’t do it. The company still fired me. It did not do a proper investigation. If it did a better job investigating, it would have found out that I didn’t do anything wrong. I want to sue for wrongful termination.”
    • That is likely not wrongful termination (no discrimination; no retaliation). A “bad” or “incomplete” investigation or even mistakenly relying on incorrect information when deciding to terminate an employee is not necessarily illegal.
  • “My employer discriminates against EVERYONE!”
    • That’s impossible. Discriminating means treating one category of employees better than another. (i.e. treating men better than women; treating younger employees better than older employees; etc.)
  • “I got a new boss.  He is making so many changes and it feels like he is trying to force me out.  I spent years at this company doing just fine.  They should appreciate me for all the work I’ve done in the past.”
    • This happens frequently, and it does not mean it’s illegal.  If the real reason your boss is forcing you out is based on a protected category (such as your race, age, sex, religion, disability, color, national origin, or actionable retaliation), then it could be illegal.  Otherwise, it may just be a change in management style/goals. Regarding the past work… you were paid for that work and, from a legal perspective, it probably does not matter.   
  • “Work is really stressful. My boss is mean. As a result, I’m upset/sad/mad. I can’t sleep well. I’m always dreading going into work. I’m getting more stressed. The stress is affecting my health.” 
    • That’s unfortunate, but likely not illegal. You are free to look for another job that may be more fun or just quit. 
  • Because I was fired, I am experiencing extreme emotional distress or mental anguish. I want to sue because of this emotional harm that I am suffering. 
    • Although emotional distress may be an element of damages if you prove discrimination or retaliation, it is still necessary to have an underlying viable claim. Nearly everybody who is fired understandably experiences some form of emotional distress, but that does not mean that there’s a possible claim against the company. Again, depending on the specific law at issue, the termination must found to be illegal before you may be able to recover for any alleged emotional distress. 
  • “I’ve been discriminated against, retaliated against, and harassed for five years during my entire employment for all types of discrimination. Here is a 20-page written explanation of everything, hundres of pages of documents (including all emails where somebody may have offended me), and I can get a dozen witnesses to verify everything. I’ve been complaining to HR since the moment I joined the company. I have filed countless internal complaints over the last few years and HR never finds in my favor. I want to sue for every possible form of discrimination.” 
    • If you’ve been employed by the same employer during this entire time, it’s likely you have not suffered an actionable event worth initiating legal action. But assuming you did (such as being fired), if you’re unable to limit the potential claim at least to some extent, it’s unlikely that it would be possible to convince a judge or jury of a specific illegal (and actionable) event. Although it’s possible there could be something illegal contained in all this information, the rest of it would probably be used against you. An attorney would probably not be interested in taking on this possible case.
  • “My co-worker said that someone said that I’m not a good employee. They’re saying that to everyone at work. I want to sue for defamation.” 
    • There is no defamation within the employment context. Also, if your primary concerns are essentially office-related “gossip,” Mr. Sud will not represent you.
  • “My boss made me look bad in front of everyone by commenting on my mistakes at work or my performance problems.”
    • That’s just a mean or harsh boss. That’s not illegal.
  • “I asked my boss for a promotion or a raise. In response, I was fired.” 
    • That’s not illegal. 
  • “I complained to HR because my boss would not let me take off work so I can go to Las Vegas to celebrate my sister’s birthday. And then he fired me after he found out about my complaint. That’s retaliation!”
    • Maybe he is retaliating against you for complaining, but it’s not a complaint concerning a protected activity. If you complained to HR about your boss making inappropriate comments based on sex, age, race, religion, or other protected categories, and then you were fired, that is more likely to be illegal retaliation.
  • “I got a write-up (or put on a Performance Improvement Plan) for reasons that are false. I tried to explain to my boss/HR, but they disagreed and would not retract it. That is now in my personnel file forever and my career is over! Everybody will know! It is defamation! I want to sue for [insert whatever phrase you recently Googled]”
    • No, no, and no. A write-up or PIP is usually not an actionable claim, even if you disagree with it. It is not defamation and third-parties will almost never know or even care. However, if you are later terminated and it turns out that write-up or PIP was given to you in a discriminatory manner when compared to a similar employee, then that could possibly be used as evidence to support a discriminatory termination.
  • “My boss made an inappropriate comment based on my race or gender. I complained to HR, and they disciplined him. I was told he would not retaliate. But a week later, he yelled at me because I made a mistake. And a couple months after that he sent me an email complaining that I had come into work late. He is retaliating!”
    • Maybe, but probably not. An actionable retaliation claim usually must involve an ultimate employment action — likely something that causes financial harm (such as a termination, demotion, or not giving a standard bonus or raise). Also, you are still required to do your job as expected. 
  • I’m being asked to do tasks that I shouldn’t be doing in my position. Or I’m having to work really hard and my boss is not nice. Or My boss is complaining about my performance and I’m worried I might lose my job. –> Therefore, I am in a “hostile work environment!” 
    • No. A “hostile work environment” is generally limited to extreme forms of harassment based on a protected category (such as sex, race, age, disability, etc.). 
  • “I lied to my boss. He found out and fired me. I’m mad/sad. I deserve a second chance.”
    • Don’t lie.
  • This is a terrible place to work. Everybody hates the boss.   
    • Then quit, or be thankful you’re not working there anymore.  Again, is there discrimination or retaliation?   
  • I think I am a good employee. But I got a poor performance review. Therefore, I must find a way to get back at my boss and the company. 
    • There is likely nothing illegal here. If you are eventually fired or demoted as a result of the poor performance review, then perhaps this evidence could possibly be used to support discriminatory treatment, depending on how you compared to other employees in a similar position.

Also, even if an employer’s alleged actions may be illegal, there are still many other factors that go into evaluating an employee’s potential discrimination or wrongful termination case, as litigation and trial involves a substantial amount of time and risk.  Sud Law P.C. takes on very few cases and potential clients are expected to go through extensive vetting, as the litigation process could be two-years or longer, involve a significant amount of expense, and require patience and commitment.