Can you sue your supervisor or the employee who is discriminating against you or just your employer?

Under Federal and Texas law you can only sue your employer for discrimination. As an El Paso, Texas employment lawyer I have many employees who come see me tell me they really want to sue their supervisor who has been harassing them or retaliation and discriminating against them. While there was some question at one time about who could be sued, the law has come down that you can only sue your employer and not any of the employees (including supervisors) who work for the company. The reason for this is that the laws that allow discrimination lawsuits only permit a lawsuit against the employer. In fact, in the recent case of Anderson v. Houston Community College System, 458 S.W.3d 633 (Tex. App.—Houston [1st Dist.] 2015), the Court of Appeals actually allowed an award of attorney’s fees under section 21.259(a) of the Texas Labor Code in favor of the employer’s supervisor and against the discriminated against employee. As the court noted, the law is clear that an individual supervisor is not an “employer” who can be sued under Texas Labor Code Chapter 21. It is extremely rare for a court to award attorneys’ fees against the employee but the court felt this law was so well settled that the employee had no right to bring a suit against his supervisor and therefore attorneys fees were warranted. The Court went on to state that the trial court may award attorney’s fees to a prevailing defendant in an employment act under Texas state law claim “provided the plaintiff’s claims were frivolous, meritless, or unreasonable, or the plaintiff continued to litigate after it became clear that his claim was frivolous.” Elgaghil, 45 S.W.3d at 144–45; see also Winters, 132 S.W.3d at 580 (citing Elgaghil with approval). This is a very different standard than a claim by the employee which should be awarded if he or she prevails in the lawsuit. In general as long as the case is not frivolous, meritless, or unreasonable or that the employee continues to litigate after it becomes clear that the claim is frivolous an award of attorneys’ fees against an employee should not occur. As an El Paso, Texas employment lawyer I know many of my clients are worried that if they lose they will be saddled with an award of attorneys’ fees, but as you can see this is a very high standard and I have not heard of a case in El Paso, Texas where there has been such an award on a legitimate discrimination claim even where the employee loses at trial.