Before you can sue your employer for retaliation for reporting discrimination does the discriminated employee have to do the reporting?

In a recent Federal District Court case a Federal Judge in the Western District ruled that the employee was not required to report the discrimination when the discrimination was open and pervasive. This case involved same-sex harassment which normally always requires that the employer be put on notice of the discrimination before they can be held liable (assuming they have a sexual harassment policy and that the policy is communicated to the employees). However, the Federal District Judge in this case found that there was at least a fact issue precluding dismissal of the employee’s case because the evidence was that the supervisors knew of the harassment because it was so open and pervasive.

While this case is helpful, if it goes to trial and is not settled it will almost certainly be appealed to the 5th Cir. which has been extremely hostile to the rights of fired and injured workers in Texas. Therefore, if you are harassed at work based on your race, color, religion, national origin, disability, sex or age by a co-worker (or a Supervisor for that matter) you should make it a point to report the harassment to your Supervisor or HR (or to whoever your handbook says to report the discrimination) and you should do it in such a way that you have evidence of the report. An email blind copied to your personal email is an excellent way to prove that you made the report. As in all discrimination, harassment and retaliation claims you need evidence to prove up your case and going to see a lawyer prior to your termination could help you in preventing your termination. As an employment lawyer in El Paso, Texas and Las Cruces, New Mexico I see many individuals who are not yet terminated and I am able to give them some free advice on how to proceed in the hopes that they can keep their jobs.

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