Colin Walsh
Austin Employment Lawyer Colin Walsh

Human Resources has called you into a meeting.  At first, you are nervous.  You wonder if someone caught you taking Carl’s lunch from the fridge or if all of those pens you accidentally put in your pocket are going to come back to haunt you.  But then you quickly realize, it is not about you.  HR is investigating a complaint of unlawful discrimination made against your supervisor.  During the interview, HR asks, “Have you ever been discriminated against by your supervisor because of your race/sex/religion/disability/age/national origin/color/sexual orientation?”  You answer truthfully, telling the investigator that you have been discriminated against based on a protected characteristic.  You’ve seen this supervisor do that to others as well.  You provide several examples of both things.  When your supervisor finds about the interview and what you said, your supervisor fires you.

Or how about this: You have noticed that you are not being treated the same as many of your coworkers, who are of a different race/sex/religion/disability/age/national origin/color/sexual orientation.  Perhaps you are not getting as much pay, getting less desirable work assignments, or not getting approval for PTO or sick leave.  Maybe your supervisor uses a nickname you told the supervisor you don’t like.  He doesn’t use belittling nicknames with other employees.  Maybe, unlike other employees, the supervisor micromanages or over-scrutinizes your work, giving you a bad performance evaluation.  One day, you go to HR or even maybe your supervisor.  You ask your supervisor, “Am I being treated differently because of my race/sex/religion/disability/age/national origin/color/sexual orientation?”  The supervisor says no, but a week later you’re fired.

Have you engaged in protected activity by merely answering questions by the company or asking if you have been unlawfully discriminated against?

YES! That is considered protected activity, but it took courts a surprisingly long time to say that.  For example, regarding whether or not reporting discrimination during a company’s internal investigation is protected activity had to be litigated all the way up to the Supreme Court.  And that didn’t happen until 2009.  Here is what the Supreme Court said about that:

There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

Crawford v. Metropolitan Gov’t of Nashville & Davidson Cnty, Tenn., 555 U.S. 271, 277-78 (2009).

The second scenario, where the report of unlawful conduct takes the form of a question, was not decided by Texas state courts until 2005 in a Texas Whistleblower Act case.  In that case, the Third Court of Appeals in Austin held that a whistleblower is protected for reporting a violation of law even if it is “in the form of a query.”  Tex. Dep’t of Assistive & Rehab. Srvcs. v. Howard, 182 S.W.3d 393, 400 (Tex. App.—Austin 2005, pet. denied).  The federal appellate courts didn’t decide this issue until 2009.  In 2009, the Seventh Circuit held that asking whether something was disability discrimination constituted protected activity.  See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009).  The issue has not been directly addressed in the Fifth Circuit, which is the federal appellate court for Texas, but the reasoning of both Crawford and Casna apply.  In fact, the Fifth Circuit has even cited Casna for the proposition that informal complaints constitute protected activity.  See Amanduran v. American Airlines, 416 Fed. App’x 421, 424 (5th Cir. 2011).

One caveat must be mentioned though.  While both of the above examples would be considered protected activity, it is important to note that in both examples, the employee specifically stated which type of discrimination they experienced or asked about experiencing.  If the employee had just said that they were being treated differently or asked if they were being treated differently, it is unlikely that either one would be considered protected activity.  

So, if you think you have been discriminated against and are going to raise the issue with your employer, be specific and state explicitly what type of discrimination you believe you have experienced.  You should also consider contacting an employment lawyer who can help you navigate these issues and talk to you about whether you have a case and what options there are.

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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.