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‘Adverse impact’ standard set for Texas Whistleblower Act

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in Discrimination and Harassment,Employment Law,Human Resources

The Texas Supreme Court has weighed in for the first time on an important interpretation of the Texas Whistleblower Act (TWA). The TWA prohibits state and local governments from taking adverse employment actions against employees who, in good faith, report violations of the law to an appropriate law enforcement agency.

Until now, a key term in the act was largely undefined: Exactly what is an “adverse employment action"? Now the state’s highest court has ruled that adverse impact is a material act that probably would deter a similarly situated, reasonable employee from reporting a violation of the law. The standard is similar to the one used in federal discrimination retaliation cases.

Recent case: David Park, a patrol lieutenant with a sheriff’s department, told his supervisors that he had learned of sexual harassment within the department. Later, he lost the chance to have first pick of a secondary assignment. The loss didn’t mean anything in terms of money or benefits, but Park sued anyway. He claimed retaliation for blowing the whistle on harassment.

In its decision, the Texas Supreme Court said retaliation has to involve punishment that would make a similarly situated, reasonable employee hesitate to take the same action as the employee who claims he was retaliated against.

In this case, the court said the “right to first pick” of assignments didn’t meet that standard. It was hardly something so onerous that it would stop a reasonable employee from reporting criminal or other wrongdoing. (Montgomery County v. Park, No. 05-1023, Supreme Court of Texas, 2007)

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