Texas Supreme Court gives drafting lesson on employee write-ups

A recent decision by the Texas Supreme Court provides a valuable lesson for employers on how to draft employee discipline. Let’s start by examining law theory and then move on to look at how to put theory into practice.

Legal theory

An important concept in Texas employment law is causation in a retaliation claim. For example, an employee complains about an issue at work—such as unlawful discrimination—or blows the whistle on government misconduct. This is called “protected conduct.” There’s evidence the employee suffers an adverse employment action as a result.

But the employer says, “So what? We also had clearly good reasons for firing the employee.” So, there are two reasons, one legitimate and one not. How do you untangle them? This is how the Texas Supreme Court summed it up recently:

We have consistently held that, for a violation to occur, the protected conduct need not be the employer’s sole motivation for the adverse employment action, but it must be such that without the protected conduct the adverse action would not have occurred when it did. Under this causation standard, the evidence must establish that the employer would not have taken the adverse action “but for” the . . . protected conduct, meaning no violation occurs if the employer would have taken the adverse action when it did even if the employee had not engaged in the protected conduct.