You’re being harassed at work but you have not been fired. Can you sue for wrongful termination? Maybe not.

You file a complaint of discrimination from your supervisor with the EEOC or your employers HR department. Your supervisor starts to retaliate by harassing you. Do you have a case of retaliation? In the recent case of Esparza v. University of Texas at El Paso, __ S.W.3d ___, 2015 WL 4711612 (Tex. App.—El Paso 2015), the El Paso Court of Appeals rejected the employee’s retaliatory harassment claim, finding that the employer’s “micromanagement” of her work, authoritarianism, belligerent manner, vulgar language, limits on her assignments and low evaluations did not constitute sufficiently severe or pervasive conduct to constitute an abusive work environment.

Obviously if the employer had fired the employee this would be an actionable claim for retaliation, but this case should remind us all that retaliation must meet the standard of an adverse employment action.

I will say that as an El Paso employment lawyer I see a lot of employees that face a similar situation and advising them on when they have a claim is not easy. However it is always wise to file a claim of discrimination with either your employers HR department or the EEOC. However should always seek out the advice of a competent Board Certified Employment lawyer so that you can properly work your complaint so that you will be covered if you are retaliated against. I have had employees who have faced similar situations as the one above and have had to tell them that while I feel their situation is terrible the Court system may require more “adverse employment action”.

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