Colin Walsh
Colin Walsh

If a person or company breaches a contract they have, that person or company can be sued immediately in court.  If someone gets in a car wreck, in theory, a lawsuit could happen the next day.  Ditto if you don’t get paid minimum wage or overtime.  But with employment discrimination and retaliation, as with many whistleblower statutes, a lawsuit cannot happen until after administrative remedies have been exhausted.  So what does that mean?

Basically, exhaustion of administrative remedies means having to report the discrimination, retaliation or whistleblower retaliation to a certain agency, department, or authority.  For example, if you were discriminated against by your employer in Texas because of you race, age, gender, disability, religion, national origin, or color, you must first report it to either the Equal Employment Opportunity Commission (EEOC), the Texas Workforce Commission (TWC), or a Fair Employment Practices Agency (FEPA).  These agencies then have a statutorily required amount of time to investigate the claim before the agency issues a right to sue.  It is this right to sue or entitlement to that right to sue that allows a person to take the discrimination claim to federal or state court.  The exact same process must occur for retaliation claims involving retaliation for opposing discrimination based on race, age, gender, disability, religion, national origin, or color.  But after you receive your right to sue or entitlement to a right to sue, your administrative remedies have been exhausted.*  

The deadlines for filing with the EEOC, TWC or FEPA are extremely short as deadlines go.  To preserve federal law claims, the charge must be filed within 300 days of the adverse action.  To preserve state law claims, the charge must be filed within 180 days of the adverse action.  Moreover, Texas state law employment discrimination/retaliation claims have a second statute of limitations that must be met.  State law employment discrimination claims must be brought within two years of the filing of the charge of discrimination regardless of whether a right to sue has been issued.  These deadlines are even shorter for federal employees.

Whistleblower claims have myriad different agencies, departments, or individuals that must be reported to in order to begin exhausting administrative remedies.  Moreover, the deadlines for such reporting are all over the place ranging from 30 days to 2 years.

I hear what you are thinking: what happens if I don’t exhaust my administrative remedies?  Well, in most situations that means your case will get kicked out without ever reaching the merits, which is a major bummer.  

Is there any hope if I didn’t exhaust my remedies? Yes!  But it is super risky.  Recently, the U.S. Supreme Court held that exhaustion of administrative remedies for purposes of federal employment discrimination laws are not jurisdictional. Fort Bend County, Tex. v. Davis, 139 S. Ct. 1843, 1850, 204 L. Ed. 2d 116 (2019).  That means that a defendant must affirmatively plead and prove that you did not exhaust administrative remedies before your case can be kicked out on that basis.  In most cases, defendants will plead the affirmative defense of a “failure-to-exhaust” just in case.  So, it is unlikely that most plaintiffs can take advantage of this fact, but it does happen.

This leads to two takeaways.  First, between reporting to the right agencies, departments, or persons and doing so within the proper timeframe things can get complicated.  Second, if you suspect unlawful discrimination or retaliation, you should act quickly.  A lawyer can help you through this process and make sure that by the time you have exhausted your administrative remedies you are in the best position to file suit.  

*There’s that phrase again: “entitlement to a right to sue.”  That’s weirdly phrased, you think.  You’re right.  You are so smart to notice that.  It’s phrased that way because of a quirk in Texas law.  Under Chapter 21 of the Texas Labor Code, courts have determined that neither the actual right to sue nor even the request for a right to sue is necessary to exhaust state administrative remedies.  Instead, all that is required is that 180 days pass since the charge was filed.  Then on the 181st day, you can file your lawsuit without tasking any other action because administrative remedies have been exhausted. See City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.-Houston [14th Dist.] 2002, no pet.); see also Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513-14 (Tex. App.-Waco 2004, pet. denied).  That’s kinda fun, right?  Not a lot of people, including not a lot of employment lawyers, know that, but now you are one of the few who does! 

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Photo of Colin W. Walsh Colin W. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh

We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions.   After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.

1. What do you like most about being an employment lawyer?

I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.

2. What is the most important issue to you of being an advocate?

One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.

3. What kind of clients do you like best?

I like the clients that I am able to help who were not able to find help elsewhere.  On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.

4. What do you think is the most important part of a good case?

The client.  If the client is not invested, then the other side won’t take it seriously and neither will the jury.

5. What labor and employment issues do you think are currently trending?

The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination.  For some reason, these types of discrimination seem to be acceptable to employers.  The other issues right now are minimum wage and overtime pay.

6. Who is your favorite Supreme Court Justice?

Justice William Brennan.

7. What would you say to HR of a company about how to treat employees?

It would be to listen to your employees.  Most employees are not looking to sue when he or she goes to Human Resources.  These employees are sincerely looking for help.  Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.

8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

The most interesting job I’ve had is working as an extra in film and television.  I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.

9. What is your favorite food?

Meat pies.  I first discovered them when I studied abroad in undergrad.  I can’t believe these have not caught on in the U.S. because they are brilliant.

10. What’s the best part of living in Austin?

All of the outdoor festivals.  And the Longhorns.

Colin W. Walsh is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006.  Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.