In a major opinion In Burlington N. & S.F.R. v. White, 548 U.S. 53 (2006), the U.S. Supreme Court held that Title VII’s anti-retaliation provision prohibits retaliation by adverse employment or non-employment actions, including post-employment actions (such as adverse job references). This was a major victory for employees because it kept employers from retaliating against employees by giving them bad references if they filed a claim of discrimination with the EEOC (or with the employer)
Under Texas law Chapter 21 of the Texas Labor Code tracks the language of Title VII’s anti-retaliation provision, and Texas courts ordinarily follow the course of the federal courts. Unfortunately, two recent decisions by Texas appellate courts held that non- or post-employment actions are not adverse actions prohibited by Texas law. Jones v. Frank Kent Motor Company, 2015 WL 4965798 (Tex. App.—Fort Worth 2015) (not for publication) (employer counterclaim not a retaliatory action); Texas Department of Aging and Disability Services v. Loya, ___ S.W.3d ___, 2016 WL 1701957 (Tex. App.—El Paso 2016). Neither case cited White. Each relied on federal cases decided prior to and overruled by the Burlington N. & S.F.R. v. White case. This is really unfortunate because I practice in El Paso, Texas as an employment lawyer for fired and injured employees the Loya case would apply to El Paso employees who are retaliated against. However, because this opinion actually relied upon cases either overruled or decided before Burlington N. & S.F.R. v. White it is my hope that the next time the Court of Appeals decides this case they will look more closely at the Burlington N. & S.F.R. v. White case and will bring Texas law in line with Federal law.