Areyana Gilbert
Houston Employment Trial Lawyer Areyana Gilbert

When a new client sits across from me after losing a job they believe they were unlawfully denied or fired from, the conversation almost always turns to money — specifically, what they can recover in back pay and front pay. What many clients don’t expect to hear, at least not at first, is that the size of that recovery depends in part on what they do after the termination, not just on what their employer did to them. That’s the doctrine of mitigation of damages, and as a plaintiff’s employment attorney, I consider it one of the most important — and most misunderstood — concepts in this area of law.

At its core, mitigation of damages means that an employee who has been unlawfully terminated has a duty to use reasonable diligence to find other, substantially equivalent employment. The idea traces back to basic principles of damages law: a plaintiff cannot simply sit on the sidelines and let losses accumulate when reasonable steps could reduce them. The Supreme Court articulated the standard for Title VII cases in Ford Motor Co. v. EEOC (1982), holding that a claimant satisfies the duty to mitigate by using reasonable diligence in seeking employment substantially equivalent to the position lost. The same principle applies broadly across wrongful termination, discrimination, and retaliation claims, whether brought under Title VII, the ADEA, the FMLA, or state law.

Here’s what often gets lost in translation, though: mitigation is an affirmative defense, and the burden of proving it belongs to the employer, not the employee. To reduce a back pay award, the defendant must show both that comparable jobs were actually available and that the plaintiff failed to make reasonable efforts to pursue them. Courts, including the Fifth Circuit, have consistently placed that burden squarely on the employer’s shoulders. That distinction matters enormously in practice. It means a client doesn’t have to prove they searched perfectly — they just have to show they acted reasonably, and the employer has the much harder job of proving otherwise.

It’s also worth clarifying what “substantially equivalent employment” actually requires, because clients sometimes worry they were obligated to take the first job offered, no matter how far it fell from their prior role. That’s not the standard. The replacement position must be comparable in status, responsibility, compensation, and working conditions. By way of example, a terminated operations manager isn’t required to take a warehouse floor job to satisfy the mitigation duty, and a claimant who turns down a genuinely inferior position hasn’t failed to mitigate.

So what does this mean practically, from where I sit? It means that from the very first client meeting, I’m talking about documentation. I tell clients to keep a running log of every job application, every recruiter contact, every LinkedIn message, every networking event — dates, positions, companies, and outcomes. Save the rejection emails. Save the job postings you applied to. If you take a lower-paying job in the interim, keep those pay records too, because interim earnings offset — but don’t eliminate — the back pay calculation. This isn’t busywork. It’s the evidentiary record that will make it very difficult for a defense attorney to argue my client sat idle.

Mitigation of damages isn’t a loophole for employers to escape accountability, and it shouldn’t be treated as one. It’s a doctrine that, properly understood and properly documented, actually protects good-faith plaintiffs while preserving the basic fairness principle that damages should reflect real, provable loss. For plaintiffs and their attorneys, the lesson is simple: start the job search early, document everything, and let the employer carry the burden the law assigns to them. 

Senior Trial Attorney Kalandra Wheeler
Kalandra Wheeler is a Board Certified Austin employment lawyer.

hat that stack of paperwork really asks you to give up, and why it’s hard to take back.

Losing a job is one of the most stressful things that can happen. So, when your employer slides a severance agreement across the table, or emails a settlement offer after a dispute, the instinct is understandable. Sign it, take the check, and move on. A few weeks of pay feels like a lifeline when the ground has just dropped out from under you.

But here’s the hard truth. A severance or settlement agreement is a legal contract written by your employer’s lawyers to protect your employer. It is not a gift. It is a trade. And once you sign it, the deal is usually done for good.

What “Release and Waiver of Claims” Actually Means

Somewhere in that document, often buried under legalese, is a section called something like “Release of Claims” or “Waiver.” This is the heart of the agreement, but also the part people often skim right past.

In plain English, a waiver of claims means you are promising not to sue your employer for anything. Not just the thing you’re upset about right now, but everything, known or unknown, that happened up to the day you sign. There are a few exceptions, but so few they are virtually nonexistent.

A waiver of claims includes claims you may not even realize you have.  They could be claims for unpaid wages, discrimination based on age, race, sex, disability, or pregnancy, retaliation for reporting something illegal, harassment, or a whistleblower claim. Many releases are written so broadly that they cover “all claims arising from the beginning of time through the date of this agreement.” People laugh at that phrase, but it is doing some pretty heavy lifting. You may be signing away rights worth far more than the check you’re offered.

“Can I Just Get Out of It?” The Painful Answer

Here’s a scenario that plays out all the time. Someone signs on a Friday, then talks to a friend or starts feeling like they were pushed out unfairly. Over the next few weeks, there is the persistent thought that their employer did something wrong. So, they call a lawyer to talk about the employment dispute they were entangled in before the layoff or termination. Then they ask, “can I undo this?”

The honest answer is usually no. Courts take signed contracts seriously. When you sign, the law generally presumes you read it, understood it, and agreed to it. “I didn’t really read it” is almost never enough to get you out. To rescind a signed agreement, you typically have to prove something extreme. In Texas, that can be a steep hill to climb, and you carry the burden of proof.

There’s another catch. Many agreements require you to give back the severance money before you can challenge the release, and by then it’s often spent on rent and bills. Some also contain a covenant not to sue, meaning that if you try to sue anyway, you could owe the employer’s attorney’s fees. The very act of fighting can cost you more than you’d win, if you win at all. And if you lose and the court deems the waiver proper, you may end up with nothing but a bill for your former employer’s attorneys’ fees and costs.

There are narrow exceptions. Under the Older Workers Benefit Protection Act, workers over 40 have a 21- or 45-day period to consider an age-discrimination waiver and 7 days to revoke it after signing. But those windows are measured in days, and once they close, they close. The time to get advice is before the ink dries.

The Bottom Line

Sometimes a severance deal is the right move, and a good lawyer will tell you so. But you deserve to know what you’re giving up before you give it up. Signing is fast and easy. Attempting to unsign may be slow, very expensive, and usually next to impossible. So before you sign anything tied to a termination, layoff, or dispute, do yourself one favor: have an employment attorney review it first. If you are thinking about signing a severance or settlement agreement, contact our employment attorneys for a confidential review before you sign, so you know what you’re giving up.

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Austin Employment Lawyer Ty'Queese Keyes

The Family and Medical Leave Act (FMLA) gives eligible employees the right to take unpaid, job-protected leave for specific family and medical reasons. It’s one of the most widely used federal employment protections, but also one of the most misunderstood — particularly when it comes to eligibility and how leave time is actually counted. Here’s a breakdown of who FMLA applies to, how leave is calculated, what rights it guarantees, and what to do if those rights are violated.

Who Does FMLA Apply To?

FMLA eligibility depends on two things: whether the employer is covered, and whether the employee individually qualifies. Covered employers include private-sector businesses with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, all public agencies (federal, state, and local governments, regardless of size), and public and private elementary and secondary schools, regardless of size. Eligible employees must meet all four of the following: You must work for a covered employer, have worked for that employer for at least 12 months (the months don’t need to be consecutive), have worked at least 1,250 hours during the 12 months immediately before the leave begins, and work at a location where the employer has 50 or more employees within 75 miles. 

FMLA leave can be used for the birth or adoption of a child, to care for a spouse, child, or parent with a serious health condition, for the employee’s own serious health condition, or for certain needs related to a family member’s military deployment. A separate provision allows up to 26 weeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.

It’s important to note that leave doesn’t have to be taken all at once. It can be used “intermittently” (in separate blocks of time) or on a “reduced schedule” (fewer hours per day or week) when medically necessary. This is common for chronic conditions, ongoing treatment, or recovery. When leave is intermittent, employers calculate usage in the smallest increment of time the employer’s payroll system uses for tracking other absences, generally no larger than one hour.

What’s Your Rights Under FMLA?

Under the FMLA, eligible employees have the right to:

  • Take up to 12 weeks of unpaid leave (26 weeks for military caregiver leave) for a qualifying reason
  • Continue their group health insurance coverage during leave under the same terms as if they had continued working
  • Return to the same position they held before leave, or to an equivalent position with equivalent pay, benefits, and other employment terms
  • Take leave intermittently or on a reduced schedule when medically necessary
  • Be free from interference, restraint, or denial of these rights by their employer
  • Be free from retaliation for requesting or taking FMLA leave, or for participating in an FMLA-related investigation or proceeding

Employers are also required to post FMLA notices in the workplace and, in many cases, provide individualized notice to employees about their eligibility and rights when a qualifying need for leave arises.

 What to Do If Your FMLA Rights Are Being Obstructed or You’re Facing Retaliation?

Interference includes things like an employer refusing to grant qualifying leave, discouraging an employee from taking it, failing to reinstate them to an equivalent position, or manipulating hours/schedules to knock someone below eligibility. Retaliation includes termination, demotion, discipline, or other adverse action taken because an employee requested or took FMLA leave or cooperated with an FMLA investigation.

If you believe your rights have been violated, you generally have two paths, and you don’t have to choose only one:

  • File a complaint with the Department of Labor’s Wage and Hour Division (WHD). WHD investigates FMLA complaints, and complaints may be filed in person, online, or by mail. You are not required to file with WHD before pursuing other remedies.
  • File a private lawsuit. Employees can sue directly in federal or state court for FMLA violations without going through WHD first. The deadline (statute of limitations) is generally 2 years from the date of the violation, or 3 years if the violation was willful. 

Practical steps if you suspect interference or retaliation: document everything (leave requests, medical certifications, dates, and any communications with your employer), keep copies of your FMLA paperwork, note any change in treatment or discipline that followed your leave request, and consult an employment attorney here.

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Trial Attorney Jermaine Brown

Summary: The law separates the wages your employer cost you from the harm your employer did to you. The duty to mitigate has always applied to the first. In July 2026, the Fifth Circuit answered for the first time whether it also reaches the second, and held that it does not. This blog explains what the duty actually is, what your employer can and cannot hold against you at trial, and what to start doing this week.

Harassment does not end when you clock out. It follows you into the car. It sits with you Sunday night. It shows up in your sleep, in your stomach, in the way you brace before you open your email. You keep going to work because you need the job, and you keep telling yourself it will pass, and it does not pass.

At some point in all of this, someone will suggest that you could have handled it better. Maybe a coworker. Maybe a manager. Maybe, eventually, your employer’s lawyer, who will suggest it to a jury.

In July 2026, the Fifth Circuit told employers they cannot turn that suggestion into a discount.

What the Duty to Mitigate Is

The duty to mitigate comes from an old principle of damages law. When someone wrongs you, they pay for the harm they caused, but they do not pay for harm you could reasonably have avoided. In an employment case that means an employee who has lost pay is expected to make a reasonable effort to find comparable work. What you earn, and sometimes what you reasonably could have earned, gets subtracted from the back pay you are owed.

The word doing the work is not duty. It is reasonable. You are not required to take the first offer, change careers, accept a demotion, or move across the state to prove you tried. Honest, ordinary effort is the standard, and most people meet it without thinking about it.

Here is the part that matters for this decision. A discrimination or harassment case can involve two different kinds of money. There are the wages you lost, which are measurable and which the duty to mitigate has always governed. And there is the harm itself, which the law calls compensatory damages for emotional distress, and which exists because losing sleep and losing your health are not the same thing as losing a paycheck.

What SkyWest Wanted It to Do

A jury in Dallas found that SkyWest Airlines harassed a parts clerk because of her sex and then failed to remedy it, and awarded her damages for the harm itself. On appeal, SkyWest argued the award should have been cut because she could have taken steps to reduce her own suffering. Therapy. Medication. Something.

Think about what that argument asks a court to accept. That a company can harm you and then hand you a share of the bill for not recovering fast enough.

Why the Court Said No

The Fifth Circuit had never decided this question. It decided it against SkyWest, and it gave two reasons.

The first is the statute. Congress wrote a duty to mitigate into the part of the law that covers lost wages. It did not write one into the part that covers emotional harm. The court would not add words Congress chose to leave out.

The second is history. SkyWest argued that mitigation is so old and settled a principle that Congress must have assumed it applied here. The court said that states the principle too broadly. The question was never whether people generally must limit their losses. It was whether anyone has ever been required to limit her suffering. No settled rule said so when Congress wrote this law in 1991, and none says so now.

The duty stands where it always stood. It reaches your paycheck. It does not reach you.

What This Means for You

Your job search still matters. Nothing in this decision changes the wage side. If your employer cost you income, keep applying, keep the confirmations, keep the rejections, and keep a simple record of who you contacted and when.

Your medical care is yours. Your employer cannot argue to a jury that you should have recovered faster, and it cannot price what it did to you against the appointments you did not make. That decision belongs to you, and you make it for your own reasons and nobody else’s.

An internal investigation is not the last word. SkyWest investigated, issued a few written warnings, and treated the matter as closed. A jury looked at the same investigation and awarded punitive damages on top of everything else. If your employer tells you it looked into your complaint and found nothing, that is your employer’s conclusion. It is not a verdict.

And write it down while it is happening. Messages describing something as it happens, and messages describing how you feel while you feel it, are the kind of evidence courts let juries see. Your employer is already keeping its own record. Its investigation file, its notes, its emails. You should have one too.

You do not need to write for a lawyer. Write to the people you already tell things to. Keep it somewhere personal, on an account your employer does not control.

The harm was theirs to cause. The record is yours to keep.

If you are facing harassment, discrimination, or retaliation at work and you want to understand what you can recover, contact me in Houston or a colleague in Dallas or Austin today.

Madeline Garza
Houston Employment Trial Lawyer Madeline Garza

Most people know the Americans with Disabilities Act (ADA) protects employees and applicants who have disabilities. Fewer know it also protects people who don’t have a disability themselves but are closely connected to someone who does. 

The ADA defines unlawful discrimination to include “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). The implementing regulation extends that protection to a “family, business, social or other relationship or association” with a person who has a known disability. The relationship doesn’t have to be a marriage or a parent-child bond; any known close relationship or association can trigger protection, so long as the employer’s decision was motivated by the other person’s disability.

The purpose is to stop employers from acting on unfounded stereotypes about people connected to someone with a disability. The key question is whether the decision was motivated by the relationship, not how close it is. The EEOC’s own guidance offers an example: an employer overhears an employee mention that he tutors at a homeless shelter known for placing people with HIV/AIDS in jobs, then fires him out of concern for its image. That’s a violation, even though the employee is only minimally acquainted with the shelter’s HIV-positive beneficiaries, because the firing was motivated by concern about the disabilities of people he associated with. 

Examples of Prohibited Conduct

An employer can’t refuse to hire or fire someone because of a known association with a person who has a disability, such as declining to hire a qualified applicant because he has a child with a disability and might miss work, or firing an employee because his boyfriend is HIV-positive out of an unfounded fear of transmission through food handling. An employer can’t deny a promotion for the same reason, as when a manager rejects an applicant after learning her mother and sister had breast cancer and assuming she’ll develop it too. Other adverse decisions are prohibited as well, like transferring an employee to a lower-paying job to limit contact with her because her son has an intellectual disability.

The provision also covers benefits. An employer can’t deny health coverage available to other employees because of a dependent’s disability, or offer a job without the same dependent coverage others receive. The same goes for other privileges of employment, such as telling an employee she can’t bring her daughter, who has Down Syndrome, to a company party. And an employer can’t allow harassment based on the association to continue. In one EEOC example, a supervisor’s relationship with an employee sours after learning the employee’s wife has a severe disability; he sets unrealistic deadlines, imposes stricter rules, and removes the employee from projects, commenting that coworkers can’t count on him given “his wife’s medical problems.” Separate EEOC guidance on caregiving reinforces the point in hiring: refusing to hire a single parent of a child with a disability, assuming caregiving will make the worker unreliable, is unlawful stereotyping based on association.

What Counts as an Adverse Action, and What It Takes to Prove the Claim

A viable claim generally requires a tangible employment action, something that actually changes the terms of someone’s job, not merely an isolated remark. Termination, refusal to hire, demotion, denial of a promotion, reduced compensation, and denied or reduced benefits all typically qualify, as can a decision that materially changes the terms of employment, such as a transfer to an objectively worse position, a real cut in hours, or reassignment to diminished duties. When an employer denies a job, a promotion, or another benefit because it assumes an employee will need to miss work to care for someone with a disability, that assumption is exactly the kind of stereotype this provision is designed to catch.

Because this is still a disability discrimination claim, the employee has to show the associated person has a disability under the ADA, and that the employer knew about both the disability and the relationship. The employee also has to show the adverse action happened under circumstances reasonably suggesting the associate’s disability was a motivating factor. It doesn’t have to be the only reason for the decision, just a factor that influenced it, and it can be shown through circumstantial evidence like comments revealing concern about the disability.

The association provision exists because assumptions about caregiving, contagion, and capability harm not just people with disabilities but the people connected to them. An employer doesn’t need anything against disability in the abstract to run afoul of this law; it only needs to act on the belief that an employee’s connection to someone with a disability makes that employee less reliable or less worth investing in. The law has consistently treated that assumption as illegal.

We always recommend speaking to an employment attorney if you feel you have been targeted because of your association with someone who has a disability. Call our office at 713-337-1333 or schedule an appointment here.

Cameron Hanson
Austin Employment Trial Lawyer Cameron Hansen

If you work in health care in Texas, you have probably signed something with a radius in it. Maybe twenty-five miles. Maybe every location your employer operates. What the document says and what Texas law will let an employer actually enforce are two different questions, and as of September 1, 2025, the second question has a different answer than it used to.

Senate Bill 1318 amended Section 15.50 of the Texas Business and Commerce Code and added a new Section 15.501. For the first time, the statute’s specific requirements reach past physicians.

What the statute requires

For a covenant governed by the new provisions, the agreement is not enforceable unless it satisfies each of the following:

1. It expires no later than one year after the employment ends.

2. The restricted area is no larger than five miles from the location where the practitioner primarily practiced.

3. It provides a buyout option that does not exceed the practitioner’s total annual salary and wages at the time of termination.

4. Its terms are stated clearly and conspicuously in writing.

For physicians, a covenant is void and unenforceable if the physician is discharged without good cause.

A covenant that fits inside all four still has to clear Section 15.50(a), which requires that a restraint be ancillary to an otherwise enforceable agreement and impose no greater restriction than is necessary to protect a legitimate business interest. 

Who the new section covers

Section 15.501 reaches dentists licensed by the Texas State Board of Dental Examiners, nurses licensed under Chapter 301 of the Occupations Code (LVNs, RNs, and APRNs), and physician assistants licensed under Chapter 204. Physicians are covered by the amended Section 15.50.

Dates matter, and so does the word renewed

The new caps apply to agreements entered into or renewed on or after September 1, 2025.

Health care contracts frequently run on annual renewal cycles, and many are amended when someone takes a raise, changes titles, or moves to a different site. If any of that happened after the effective date, there is a serious argument that the new requirements govern the agreement.

An agreement that predates September 1, 2025 is not beyond challenge either. Every covenant in Texas has to meet the reasonableness requirements of Section 15.50(a). Physician agreements have long carried additional statutory conditions addressing access to patient lists, medical records, a buyout, and continuing care for patients under acute treatment. Whether a specific covenant satisfies any of that is a fact question, and the answers usually live in details the employer would rather not put in front of a judge.

Clinical work and administrative titles

The new provisions govern covenants relating to a practitioner’s health care practice. Employers sometimes argue that a management or medical director title moves a restriction outside them. That argument does not end the inquiry, however. Any covenant still has to satisfy Section 15.50(a), and Section 15.52 makes the statutory criteria exclusive, preempting other law, including common law and equitable grounds for enforcement.

Before you make a move

Read the agreement before you resign, not after. Note the date you signed, along with every renewal and amendment since. Write down the radius, the term, and the buyout figure.

Then have a lawyer read it with you. Whether a covenant can be enforced against a particular person, in a particular job, on a particular set of facts is a legal question with a lot of moving parts. The document your employer drafted does not settle it.

This post is general information about Texas law, not legal advice, and it does not address any specific agreement or situation. If you are a health care worker in Texas with questions about a non-compete, reach out to schedule a consultation by phone at 512-271-5527 or at https://www.wileylawyers.com/contact-us/

Ty Photo
Austin Employment Lawyer Ty'Queese Keyes

If you’ve started a new job in the last several years, there’s a good chance you signed an arbitration agreement without realizing it. It might have been buried in your onboarding paperwork, tucked into an employee handbook acknowledgment, or presented as a routine condition of employment. Many employees don’t think twice about it, until something goes wrong at work and they discover just how much that signature changed.

Arbitration agreements typically appear at a few key moments. Most often, they show up during onboarding, mixed in with tax forms, direct deposit paperwork, and benefits enrollment. They can also be embedded in employee handbooks, where simply signing an acknowledgment of receipt can count as agreeing to arbitrate. Sometimes they’re presented later in the employment relationship, as a condition of a raise, promotion, or continued employment. And occasionally they appear in severance or settlement paperwork on the way out the door.

Because these agreements are often presented alongside routine administrative documents, employees frequently sign without fully reading them or without realizing that a single clause inside a longer document can waive significant legal rights.

What Rights You May Give Up by Signing?

An arbitration agreement generally means that if a dispute arises between you and your employer, you can’t take that dispute to court. Instead, it goes to a private arbitrator. Here’s what that typically costs you.

The first and most significant loss is **the right to a jury trial. Disputes are decided by a single arbitrator, often a former judge or attorney chosen through a process controlled largely by the arbitration provider, rather than by a jury of your peers.

Many agreements also eliminate **the right to participate in a class or collective action, including a class action waiver that limits you to bringing your claim individually. This matters a lot in wage-and-hour cases or widespread discrimination claims, where banding together with coworkers is often the only practical way to hold an employer accountable.

Arbitration also strips away broad public access and transparency. Court proceedings are public record, while arbitration is private, and the outcome — even if you win — usually isn’t.

It’s also far harder to challenge a bad outcome, since arbitration removes most traditional appeal rights. Arbitration decisions are very difficult to overturn, even if the arbitrator made a legal error, because courts give arbitrators wide latitude, and successful appeals are rare.

Finally, you may lose some procedural protections during the case itself. Discovery, the process of obtaining documents and testimony from the other side, is often more limited in arbitration than in litigation, which can make it harder to build your case.

So, What Options Remain?

Signing an arbitration agreement doesn’t mean you have no recourse — but your options narrow. You can still bring your claim, just through arbitration instead of court; many employment statutes still apply in arbitration, since the forum changes but not necessarily the underlying law. Certain claims may also fall outside the agreement, as some arbitration agreements are narrowly written, and, depending on the state and the specific claim, courts have sometimes found such agreements unenforceable for particular types of disputes. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, for example, allows employees to choose to go to court rather than arbitration for claims involving sexual assault or sexual harassment, regardless of what the agreement says. Administrative agencies may also still be available, since filing a charge with agencies like the EEOC or a state labor agency is generally a separate process from a private arbitration agreement, and that route often remains open. An attorney can review the specific language, since arbitration agreements vary widely and enforceability can depend on the wording, the state you work in, when and how it was signed, and the type of claim involved — a clause that looks airtight isn’t always enforceable in practice.

The Bottom Line

If you’re not sure whether you signed an arbitration agreement, it’s worth checking your onboarding documents or asking HR for a copy of what you signed. And if you’re facing a workplace dispute and an arbitration clause is in the mix, talking to an employment attorney before you act can help clarify what your real options are — arbitration agreements are common, but they aren’t always the end of the story. If you are unsure what rights are limited under your arbitration agreement, consult an employment attorney here. The cost of a conversation is far less than the cost of not knowing where you stand. 

Areyana Gilbert
Houston Employment Trial Lawyer Areyana Gilbert

One of the most common misconceptions employees have when they come to our office is this: “I wasn’t fired, so I probably don’t have a case.” That belief stops a lot of legitimate claims before they ever begin. The truth is, the law protects employees from a much broader range of employer conduct than most people realize — and a landmark Supreme Court decision has made that clearer than ever.

For years, courts in the Fifth Circuit applied what was known as the “ultimate employment decision” standard. Under that framework, an employee could only pursue a discrimination or retaliation claim if the employer took a significant, final action — a termination, a demotion, a failure to hire or promote, or a pay cut. Anything short of that was often dismissed, leaving employees with no legal recourse even when their employer’s conduct was plainly motivated by race, sex, national origin, or another protected characteristic.

That narrow approach left real harm unaddressed. Employees were being stripped of responsibilities, sidelined from important meetings, and placed on pretextual performance plans — all tactics designed to push them out the door or punish them for speaking up — and courts were declining to recognize those injuries as actionable.

In 2024, the United States Supreme Court issued its decision in Muldrow v. City of St. Louis, and the standard shifted significantly. The Court held that Title VII does not require an employee to show that the employer’s discriminatory action caused “significant” harm. An employee need only show that the action caused *some* harm with respect to the terms or conditions of their employment. The Supreme Court rejected the heightened harm requirement that courts — including those in the Fifth Circuit — had long applied, opening the door for a much wider range of employer conduct to be challenged. See Muldrow v. City of St. Louis, 601 U.S. 346, 144 S. Ct. 967 (2024). [1]

This matters enormously for employees in Texas. Under the post-Muldrow landscape, adverse actions are no longer limited to firings and demotions. Depending on the circumstances, the following conduct can form the basis of a viable discrimination or retaliation claim:

-Performance Improvement Plans. A PIP is not just an HR formality. When issued disproportionately, without valid basis, or shortly after an employee complains about discrimination, a PIP can constitute an adverse action — especially if it serves as a stepping stone to termination.

-Exclusion from Meetings. Being cut out of key meetings, decision-making conversations, or professional development opportunities can harm an employee’s standing, growth, and effectiveness. When that exclusion is tied to a protected characteristic or follows a complaint, it is actionable.

-Changes in Job Duties or Descriptions. Stripping an employee of meaningful responsibilities, reassigning them to less desirable tasks, or quietly rewriting their role can constitute an adverse action when the change is tied to discriminatory intent or retaliation for protected activity.

The thread connecting all of these is context. The action itself matters, but so does the reason behind it. If an employer’s conduct — even something that looks routine on paper — is motivated by an employee’s race, sex, national origin, disability, age, or other protected characteristic, or is taken in response to a protected complaint, it may well support a legal claim. Employment discrimination claims have strict deadlines. In Texas, employees typically have 180 to 300 days from the date of an adverse action to file a charge with the EEOC or the Texas Workforce Commission — and missing that window can mean losing your rights entirely. Beyond the deadlines, early intervention matters. Evidence disappears, witnesses move on, and documentation is harder to obtain as time passes. 

If you believe your employer has treated you unfairly because of who you are or because you spoke up about discrimination or harassment, do not wait to see how things play out. Speaking with an employment law attorney early gives you the best opportunity to understand your rights, preserve critical evidence, and make informed decisions about your next steps. You may have more options than you think.

Cameron Hanson
Austin Employment Trial Lawyer Cameron Hansen

Working through a disability, a pregnancy, or a serious health condition is hard enough without feeling like your employer is making it harder. If you asked for a change at work so you could keep doing your job, and got silence, a flat “no,” or a runaround instead. You are not imagining things, and you are not asking for too much.

Here is what the law expects, and what your employer is supposed to do.

What counts as a reasonable accommodation

A reasonable accommodation is a change to how, when, or where you do your work that lets you keep performing your job despite a disability, a pregnancy or related condition, or a sincerely held religious belief. It is not special treatment. Common examples include a modified schedule, time off for treatment or recovery, ergonomic equipment or a stool, permission to work remotely, a transfer to an open position, or a break from heavy lifting. Many accommodations cost an employer little or nothing at all.

If you are not sure what might actually help in your situation, a free and genuinely useful place to start is AskJAN.org, the website of the Job Accommodation Network. You can look up practical accommodation ideas by medical condition or by type of job, and it is a resource used by workers and employers alike. Walking into the conversation with a specific request in mind often makes it go more smoothly.

The interactive process: it takes two

Once you let your employer know you need a change because of a medical condition, a pregnancy, or a religious practice, the law generally expects both sides to talk it through in good faith. This back-and-forth has a name‚ the “interactive process.” Your employer is supposed to engage with you, ask follow-up questions if it needs more information, and work with you toward a workable solution. Ignoring the request, dragging it out indefinitely, or rejecting it out of hand is not how the process is supposed to go.

You do not have to use any magic words or fill out a special form to get this started. Simply telling a supervisor or HR that you need something changed at work because of a health condition is usually enough to put your employer on notice that the clock has started.

It is illegal to punish you for asking

This is the part people most often miss: the law protects the request itself. Your employer cannot fire you, demote you, cut your hours, write you up, or otherwise come down on you because you asked for an accommodation or spoke up about your rights. If the way you were treated at work took a sharp turn for the worse right after you made your request, that timing alone can matter a great deal.

Retaliation is also often more straightforward to show than people expect. You do not necessarily have to prove that the denial itself broke the law ‚only that you were punished for raising the issue in the first place.

When to reach out

You do not need to have all the answers, or even be certain you have a case, before you talk to someone. These situations turn on specific facts and specific deadlines, and the sooner you understand your options, the more of them you tend to have. If any of this sounds like what you are going through, we would be glad to listen and help you figure out where you stand. Reach out to schedule a consultation by phone at 512-271-5527 or at https://www.wileylawyers.com/contact-us/. 

Madeline Garza
Houston Employment Trial Lawyer Madeline Garza

Racial gaslighting rarely announces itself. It shows up as a nickname you never agreed to, a story about an incident that keeps shifting, work rules that seem to bend only when you’re the one following them, or a derogatory comment dropped once and then explained away as “just a joke.” Individually, any one of these moments can be talked down to nothing. Put them together, and courts have said something different: a workplace where that behavior repeats, unchecked, can become an illegal hostile work environment.

The Law Behind the Claim

Title VII makes it unlawful for an employer to discriminate against an employee with respect to the “terms, conditions, or privileges of employment” because of race.

In Texas, state-law claims brought under the Texas Labor Code (the Texas Commission on Human Rights Act) are analyzed using this same federal standard, so state and federal law point in the same direction on the merits. Where the statutes do differ is procedure and remedy, which we’ll get to below, because it matters a lot for deadlines.

The Five Things You Have to Prove

To win a hostile work environment claim based on race, the Fifth Circuit requires a plaintiff to establish:

1.     You belong to a protected group (race).

2.     You were subjected to unwelcome harassment.

3.     The harassment was based on your race.

4.     The harassment affected a term, condition, or privilege of your employment.

5.     Your employer knew, or should have known, about the harassment and failed to take prompt remedial action.

The Core Question: Was It “Severe or Pervasive”?

This is the phrase that decides most of these cases. Courts don’t ask whether racist conduct happened; they ask whether it was severe or pervasive enough to alter the conditions of your employment and create an abusive environment. That’s an objective test (would a reasonable person in your position find it hostile?) and a subjective one (did you actually perceive it that way?). You need both.

To answer that, the Fifth Circuit looks at the totality of the circumstances, weighing:

•       How often the conduct happened

•       How severe it was

•       Whether it was physically threatening or humiliating, versus a one-off offensive comment

•       Whether it interfered with your ability to do your job

No single factor controls, and severity and frequency trade off against each other: the more extreme a single incident is, the less you need a pattern to back it up, and the milder each individual incident is, the more of a sustained pattern you need. 

Where “Gaslighting” Fits Into the Legal Picture

This is the part that trips people up, because racial gaslighting often doesn’t look like a slur. It looks like a nickname, a tone, a double standard. Courts have specifically grappled with this.

Coded or ambiguous terms. In Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006), the Supreme Court addressed the word “boy” directed at Black employees by a white supervisor. The Court held that the word doesn’t need a racial modifier attached to it to be evidence of bias. Whether it’s discriminatory depends on context: who said it, in what tone, with what inflection, in what relationship.

Nicknames read in context. The Fifth Circuit applied that same logic in Johnson v. Pride Industries, Inc., 7 F.4th 392 (5th Cir. 2021). A supervisor repeatedly called the only Black employee in his shop “mijo” (“son”) and “manos” (“hands”) instead of his given name, in violation of company policy, while also using the Spanish-language slur directly at him and, according to a coworker’s sworn statement, routinely referring to Black employees using slurs behind their backs. Standing alone, “mijo” is a term of endearment in Hispanic culture. The Fifth Circuit held that a jury could still find it was being used as a racial put-down, because the relationship between the two men was already “colored” by explicit racial hostility. In other words: seemingly neutral language doesn’t get evaluated in a vacuum. Courts look at what else was happening around it.

How Much Is Enough? One Incident vs. a Pattern

A single incident can be enough, if it’s extreme. The Supreme Court has said that isolated incidents generally won’t meet the bar unless they’re “extremely serious,” and the Fifth Circuit reinforced this in Woods v. Cantrell, 29 F.4th 284 (5th Cir. 2022), reversing a district court that had thrown out a claim purely because it involved a single racial slur. The appellate court made clear that a single-incident claim still has to be evaluated under the full totality-of-the-circumstances test. It can’t be dismissed automatically just because there was only one event.

But most single, low-severity incidents won’t cut it. Fifth Circuit cases have rejected claims based on a small handful of slurs spread out over long periods. A few incidents spanning months or years, without more, tend to read as isolated rather than pervasive. The standard exists to filter out what courts call ordinary “workplace tribulations”: sporadic rude comments, occasional teasing, isolated friction. Employment discrimination law isn’t a general civility code.

A sustained pattern usually works. Where there’s no single knockout incident, plaintiffs win by showing a regular, repeated pattern over time. In EEOC v. WC&M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007), a Muslim employee of Indian descent was called derogatory names, had his religious practices mocked, was told after September 11th to “go back where he came from,” and received a write-up accusing him of acting like an “extremist,” all over roughly a year. 

What Your Employer Is Legally Required to Do Once You Report It

Even a genuinely hostile environment doesn’t automatically make your employer liable. The final element of the claim is about the employer’s response: once it knew or should have known about the harassment, did it take prompt remedial action reasonably calculated to end it? A slow, half-hearted, or purely procedural investigation doesn’t satisfy this.

What “good enough” looks like, according to the Fifth Circuit:

•       In Williams-Boldware v. Denton County, 741 F.3d 635 (5th Cir. 2014), the employer met with the complaining employee within 24 hours, let her explain what happened, asked what outcome she wanted, then verbally reprimanded the offender, mandated diversity training, and restructured supervision so she wouldn’t have to work under the offender’s spouse. That was enough to defeat liability as a matter of law.

•       In Hudson v. Lincare, Inc., 58 F.4th 222 (5th Cir. 2023), HR was notified the same day slurs were used in a meeting, completed its investigation within five days, and issued final written warnings threatening termination for any repeat conduct, and the harassment actually stopped. That, too, was legally sufficient.

What doesn’t work: in Johnson v. Pride Industries, part of what sank the employer’s case was that its investigation simply concluded “no harassment occurred” despite a coworker’s sworn corroboration. That’s the kind of cursory review courts won’t credit as genuine remedial action.

Here’s the part that surprises a lot of people: even genuinely awful conduct doesn’t guarantee you win, if your employer’s response actually worked. In Wantou v. Wal-Mart Stores Texas, L.L.C., 23 F.4th 422 (5th Cir. 2022), coworkers continuously called a Black pharmacist “chimp” and “monkey,” mocked his accent, and made degrading comments about Africa. The Fifth Circuit called the conduct “unquestionably reprehensible” and still upheld summary judgment for the employer, because once management investigated and ordered staff to stop, the harassment ceased. The lesson: the severity of what happened to you and the adequacy of your employer’s response are two separate legal questions, and losing on the second one can sink an otherwise strong claim.

If You’re Experiencing This: What to Do Right Now

Talk to an employment attorney about what’s happening at work. It’s important to talk to someone about experiences to understand your rights as an employee. If you feel like you’re experiencing hostility or harassment that violates Title VII, schedule a consultation with me or one of the other attorneys at our Austin, Dallas, or Houston office.