The law of sexual harassment has always been that the sexual harassment must be severe or pervasive before it will lead to liability of the employer. In a recent Texas case the court held that a supervisor’s attempt to include an employee in a group viewing an obscene photograph was not sufficiently severe or pervasive to constitute sexual harassment. At least not that standing alone. However, if the employee complains about such action and reports the action to HR (or the supervisors’ supervisor) and then is retaliated (such as being fired, hours cut) against for reporting this action then the employee will have a valid claim for retaliation. This goes to show that just because your complaint of discrimination (or sexual harassment) does not meet the legal requirements does not mean that you will not have a claim for retaliation if after your report the discrimination (or sexual harassment) you are retaliated against.
However, one of the hardest things to do sometimes is prove that you complained about the discrimination (or retaliation). The best way is to do the complaining by email and bcc the email to your personal email or make a copy of the sent email for your records. It is amazing how often HR seems to remember that you complained but did not complain about discrimination of sexual harassment. Always remember that general retaliation or harassment is not actionable under Texas law. You must claim about illegal discrimination (race, color, religion, gender, national origin, age or disability for example) before you can sue for retaliation or harassment.
Also the retaliation must be a material adverse action. Another Texas Appellate held that a school teacher who complained she was being retaliated against by having more principal “walk-throughs” was not a “material adverse action”. There has been a lot of litigation over what is a “material adverse action” and while it varies from court to court it seems that anything involving pay (termination, pay cut) or a lack of advancement is material. However my advice as an El Paso, Texas employment lawyer is to always file a complaint of discrimination if you believe you are being discriminated against and do it in a way you can prove you made the claim. If you have many complaints about how you are being treated don’t neglect to remember that you can generally only win a claim if your complaints include complaints of illegal discrimination which is generally limited to age, race, color religion, gender, national origin and disability or work injury (sometimes depending on the facts). It is very important to see a competent employment lawyer before you are terminated so that you can make a proper complaint and protect your job. A good job is better than a good lawsuit; but if you are terminated you want to be able to protect yourself from wrongful termination and retaliation and a good employment lawyer can help you with both.