FEPA Discrimination Charge and Right-to-Sue Procedure — Texas

FEPA Discrimination Charge and Right-to-Sue Procedure (TEXAS)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

I. State Statutory Framework and Protected Classes

The Texas Commission on Human Rights Act (TCHRA), codified at Texas Labor Code Chapter 21, is the state employment-discrimination statute, enforced by the Civil Rights Division of the Texas Workforce Commission (TWC-CRD). Chapter 21 was modeled on Title VII and is generally interpreted in lockstep with federal law, but with several Texas-specific procedural rules and caps.

Protected classes (§ 21.051):

Sexual orientation / gender identity: Not separately enumerated in Texas statute. Under Bostock v. Clayton County, 590 U.S. 644 (2020), discrimination based on SO/GI is sex discrimination under Title VII, and Texas courts construe TCHRA consistently with Title VII (NME Hospitals v. Rennels, 994 S.W.2d 142). Practitioners should plead under "sex" and rely on Bostock until Texas authority is settled.

II. State vs. Federal Differences

III. Election of Remedies (State vs. EEOC; Dual-Filing)

EEOC and TWC-CRD operate under a work-sharing agreement. Filing with one is deemed filing with the other for cross-filed claims. Election considerations:

• TWC-CRD only: state-law remedies; sliding caps; 60-day post-RTS clock.
• EEOC only: federal claims; cross-filing satisfies TCHRA exhaustion in most cases.
• Concurrent dual-filing (recommended): preserves all claims; consider whether to file initially with TWC (anchors 180-day clock to TX) or EEOC (300-day clock).
• Sexual harassment: file with TWC-CRD under § 21.141 to capture (a) 1+ employee threshold, (b) individual supervisor liability, (c) 300-day deadline.

IV. Filing Deadline Analysis

Continuing-violation doctrine recognized under Texas law (Wal-Mart Stores v. Davis, 979 S.W.2d 30) but narrowly applied; discrete acts (termination, demotion) are not continuing violations (Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101).

V. Damages Available

VI. Right-to-Sue Requirement and Timeline

After RTS issuance, complainant must file civil action within 60 days (§ 21.254) — significantly shorter than the federal 90-day window. Outer statute of repose is 2 years from charge filing (§ 21.256).

Part B — Charge of Discrimination (TWC-CRD Filing)

Caption / Header

TEXAS WORKFORCE COMMISSION — CIVIL RIGHTS DIVISION

CHARGE OF DISCRIMINATION

Filed pursuant to Tex. Lab. Code Ch. 21; submitted via EDISS portal

TWC Charge No.: [____________] | EEOC Charge No. (if cross-filed): [____________]

Date Filed: [__/__/____]

I. Charging Party Information

II. Respondent (Employer) Information

III. Date(s) of Discrimination

IV. Protected Bases (check all that apply)

☐ Race ☐ Color ☐ Religion ☐ Sex ☐ Pregnancy ☐ National origin ☐ Age (40+) ☐ Disability ☐ Genetic information ☐ Sexual harassment (§ 21.141) ☐ Retaliation for protected activity ☐ Sexual orientation (via Bostock — "sex") ☐ Gender identity (via Bostock — "sex") ☐ Other: [________________________________]

V. Particulars (Numbered Factual Allegations)

A. Background

1. Charging Party [NAME] was employed by Respondent from [__/__/____] to [__/__/____] as [TITLE] at [LOCATION].

2. Charging Party is a member of the following protected class(es): [________________________________].

3. Charging Party was qualified for the position; performance was satisfactory or better.

B. Discriminatory Conduct

4. On or about [__/__/____], [DESCRIBE CONDUCT]. [________________________________]

5. The conduct was committed by [NAME, TITLE], who [had authority to hire/fire/discipline/assign work / acted directly in the interests of the employer — relevant for sexual-harassment individual liability under § 21.141].

6. Specific incidents:
   - [__/__/____]: [________________________________]
   - [__/__/____]: [________________________________]
   - [__/__/____]: [________________________________]

C. Adverse Action

7. On [__/__/____] Respondent took the following adverse action(s): ☐ Termination ☐ Demotion ☐ Failure to promote ☐ Pay reduction ☐ Discipline ☐ Constructive discharge ☐ Failure to hire ☐ Failure to accommodate ☐ Hostile work environment ☐ Other: [________________________________].

D. Comparator Evidence

8. Similarly situated employees outside Charging Party's protected class were treated more favorably: [NAME, TITLE, TREATMENT, DATES]. [________________________________]

E. Causal Connection

9. Temporal proximity between [protected activity / disclosure] on [__/__/____] and adverse action on [__/__/____].

10. Direct evidence: [________________________________].

11. Pretext: Respondent's stated reason — [STATED REASON] — is pretextual because [________________________________].

VI. Statement of Particulars by Reference to Statute

The conduct violates Tex. Lab. Code §§ 21.051 (discrimination), 21.055 (retaliation), 21.106 (pregnancy), 21.108 (religious accommodation), 21.128 (disability accommodation), and/or 21.141 (sexual harassment — individual and small-employer liability), as applicable.

VII. Demand

Charging Party requests that TWC-CRD:

1. Accept and investigate this charge;
2. Cross-file with the EEOC under the work-sharing agreement;
3. Pursue conciliation, mediation, and/or referral for hearing;
4. Award back pay, front pay, compensatory damages, punitive damages, reinstatement, attorney's fees, and costs;
5. Issue a Notice of Right to File Civil Action upon request after 180 days.

Signature and Verification

I, [NAME], swear or affirm under penalty of perjury under the laws of the State of Texas that the foregoing is true and correct based on my personal knowledge.

Executed at [CITY], Texas, on [__/__/____].

Signature: [________________________________]

Printed name: [________________________________]

Part C — Right-to-Sue Demand Letter

[CLAIMANT / COUNSEL NAME]
[Street Address]
[City, TX ZIP]
[Phone] | [Email]

Date: [__/__/____]

VIA EDISS PORTAL AND CERTIFIED U.S. MAIL — RETURN RECEIPT REQUESTED

Texas Workforce Commission
Civil Rights Division
101 East 15th Street, Room 144T
Austin, TX 78778

Re: Demand for Notice of Right to File Civil Action — Tex. Lab. Code § 21.252; TWC Charge No. [____________]

To the Civil Rights Division:

1. Charging Party [NAME] filed a charge of discrimination on [__/__/____] (TWC No. [____________]) against Respondent [EMPLOYER].

2. More than 180 days have elapsed since the filing of the charge and the Commission has not entered into a conciliation agreement.

3. Pursuant to Texas Labor Code § 21.252, Charging Party hereby demands issuance of a Notice of Right to File Civil Action.

4. Please transmit the notice via the EDISS portal and U.S. mail to the address above and to undersigned counsel within ten (10) business days.

5. Charging Party reserves all rights, including the right to file civil action within sixty (60) days of receipt of the notice pursuant to § 21.254 and within two (2) years of charge filing pursuant to § 21.256.

Respectfully,

[________________________________]
[NAME / Counsel]

Part D — Civil Complaint (Texas District Court Template)

Caption

CAUSE NO. [____________]

IN THE DISTRICT COURT OF [_______] COUNTY, TEXAS

[___] JUDICIAL DISTRICT

PLAINTIFF'S ORIGINAL PETITION AND JURY DEMAND

I. Parties

1. Plaintiff [NAME] is an individual residing in [COUNTY] County, Texas.

2. Defendant [EMPLOYER] is a [Texas corporation/LLC] with its principal office at [ADDRESS] and may be served through its registered agent [NAME] at [ADDRESS].

3. (Sexual-harassment claims only) Defendant [INDIVIDUAL] is an individual residing at [ADDRESS] who acted directly in the interests of the employer in relation to Plaintiff within the meaning of § 21.141.

II. Discovery Level

4. Plaintiff intends to conduct discovery under Level 3 (Tex. R. Civ. P. 190.4).

III. Jurisdiction and Venue

5. This Court has subject-matter jurisdiction; the amount in controversy exceeds the minimum jurisdictional limits.

6. Venue is proper in [COUNTY] County under Tex. Civ. Prac. & Rem. Code § 15.002(a) because the unlawful employment practices were committed in this county and Defendant's principal office is/is not in this county.

IV. Exhaustion of Administrative Remedies

7. On [__/__/____], Plaintiff filed a Charge of Discrimination with the TWC Civil Rights Division (Charge No. [____________]).

8. On [__/__/____], the Commission issued Plaintiff a Notice of Right to File Civil Action. A true and correct copy is attached as Exhibit A.

9. This Petition is filed within 60 days of receipt of the Notice (§ 21.254) and within 2 years of the charge filing (§ 21.256).

V. Factual Background

10. [Expanded factual narrative — incorporating Charge particulars with additional names, dates, documentary references.] [________________________________]

VI. Causes of Action

Count I — Unlawful Discrimination (Tex. Lab. Code § 21.051) — Against [EMPLOYER]

11–17. [Protected class; qualification; adverse action; circumstances; pretext.]

Count II — Unlawful Retaliation (Tex. Lab. Code § 21.055)

18–22. [Protected activity; adverse action; causal nexus.]

Count III — Sexual Harassment (Tex. Lab. Code § 21.141) — Against [EMPLOYER] and [INDIVIDUAL]

23–28. [Quid pro quo / hostile work environment; severe or pervasive; employer/individual response.]

Count IV — Failure to Accommodate (Tex. Lab. Code §§ 21.108, 21.128)

29–32. [Known disability/religious practice; accommodation request; failure.]

Count V — Common-Law Wrongful Discharge (Sabine Pilot, 687 S.W.2d 733) (if applicable — termination for refusal to commit illegal act)

33–36. [If facts support narrow Sabine Pilot tort.]

VII. Damages

37. Plaintiff seeks the following damages and relief subject to the caps in § 21.2585:
    - Back pay and interest (uncapped, § 21.258);
    - Front pay (uncapped equitable);
    - Compensatory damages for emotional pain, mental anguish, suffering, inconvenience, loss of enjoyment of life;
    - Punitive damages (malice/reckless indifference) — combined cap with compensatory per § 21.2585(d) tier;
    - Reinstatement / equitable relief;
    - Attorney's fees and expert fees (§ 21.259);
    - Court costs;
    - Pre- and post-judgment interest.

VIII. Jury Demand

38. Plaintiff demands a trial by jury and tenders the jury fee.

IX. Prayer

WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally where appropriate, for the damages and relief set forth above and for such other relief as the Court deems just.

Respectfully submitted,

[________________________________]
[ATTORNEY NAME] (Texas Bar No. [____])
[FIRM]
[ADDRESS]
Telephone: [_____] | Email: [_____]
ATTORNEYS FOR PLAINTIFF

Part E — Pre-Filing Checklist

☐ Adverse employment action documented (date, decision-maker, communications)

☐ Protected class identified and supported by documentation

☐ Sexual-harassment claim assessed under § 21.141 (1+ employee threshold, individual liability, 300-day SOL)

☐ Comparator evidence gathered

☐ Pretext evidence preserved

☐ Personnel file requested (Tex. Lab. Code § 103.001 et seq. — limited; rely on EEOC/TWC document requests during investigation)

☐ Continuing-violation analysis completed

☐ EEOC dual-filing analyzed for election impact

☐ Filing deadline calendared with 30-day buffer (180-day or 300-day for sexual harassment)

☐ 60-day post-RTS deadline calendared upon issuance

☐ 2-year repose deadline calendared from charge filing

☐ Damages computed with § 21.2585 cap tier based on employer size

☐ Right-to-sue notice request prepared for day 181

☐ Litigation hold notice sent to employer

☐ Removal-to-federal-court analysis (diversity defeated by in-state supervisor defendant in sexual-harassment claim)

☐ Arbitration agreement analyzed (FAA / EFAA carve-out for sexual harassment under 9 U.S.C. § 401–402)

Sources and References

• Texas Workforce Commission Civil Rights Division: https://www.twc.texas.gov/programs/civil-rights
• EDISS portal (Employment Discrimination Inquiry Submission System): https://www.twc.texas.gov/programs/civil-rights/employment-discrimination
• Texas Labor Code Chapter 21: https://statutes.capitol.texas.gov/Docs/LA/htm/LA.21.htm
• TCHRA damages caps (§ 21.2585): https://codes.findlaw.com/tx/labor-code/lab-sect-21-2585/
• SB 45 (sexual harassment expansion, eff. 9/1/2021): https://legiscan.com/TX/text/SB45/2021
• HB 21 (sexual harassment 300-day deadline, eff. 9/1/2021): https://legiscan.com/TX/text/HB21/2021
• Bostock v. Clayton County, 590 U.S. 644 (2020) (SO/GI under "sex")
• EEOC Houston / Dallas / San Antonio district offices