New Texas Legislation Expands Employee Rights and Employer Legal responsibility for Sexual Harassment Claims

Complete planetary alignment. Halley’s Comet. A complete solar eclipse. Texas is enacting increased worker protection beyond federal law.

What are “things that rarely happen in your life”?

The general rule in Texas is that legal protection for workers overlaps with its state counterparts and goes no further. But newly enacted state legislation on sexual harassment in the workplace has bucked this trend.

On September 1, 2021, new laws came into force that expand employee rights, as well as employer and individual liability for claims of sexual harassment in the workplace. In particular, SB 45 (codified as Section 21.141 of the Texas Labor Code) has made three major revisions to the pre-existing State Sexual Harassment Act.

First, the new law changed the meaning of a qualified “employer”. According to the old law, liability for sexual harassment in the workplace only applied to employers who had 15 or more employees for at least 20 weeks in the previous calendar year. But the updated law now only applies to employers one or more Employee. To that end, virtually all Texas employers are within reach of the law.[1]

Second, SB 45 extends liability to persons who act “directly in the interests of an employer in relation to an employee”. The result of this revision is that individuals acting as supervisors, managers, owners, agents, contractors or (potentially) non-regulatory employees may be personally liable under the new state law. As a result, for essentially the first time in Texas history, individuals can find themselves named defendants in a sexual harassment lawsuit in the workplace.

Third, the revised law also increases the duty of employers to investigate and remediate sexual harassment complaints. Previously, and by analogy with federal law, Texas employers could raise an affirmative plea of ​​liability if they took “immediate remedial action” in response to a sexual harassment complaint.[2] But the revised language of the Statute seems to raise that standard. Specifically, SB 45 partially states that an employer is acting unlawfully:

[I]f sexual harassment of an employee occurs and the employer or his or her representatives or superiors (1) know or need to know that the behavior constituting sexual harassment has taken place; and (2) don’t take immediately and appropriately Corrective action.

Although the new language has not yet been tested, the plaintiffs’ attorneys will no doubt argue that the phrase “promptly and appropriately” creates additional urgency for the defendant employer to act in order to successfully invoke the defense.

Finally, but importantly, the accompanying legislation has also extended the limitation periods within which employees can assert a claim. Specifically, HB 21 extends the legal deadline for filing a complaint for sexual harassment by employees to 300 days from the date of the alleged harassment. Previously, employees were required to file a harassment / discrimination complaint with the Texas Workforce Commission (“TWC”) within 180 days of the incident. This change effectively aligns the submission deadline for state claims with that of the federal government of 300 days.[3]

All of the above changes only apply to claims based on behavior that occurred on or after September 1, 2021.

Three key takeaways for employers:

1. Know your exposure. As of September 2021, essentially any business or employer in Texas will fall under the scope of the new Harassment Act. If you have an employee, you are a potential defendant.
2. act accordingly. Regarding item “1”, employers who previously overlooked harassment policies, procedures and training must act quickly to implement the necessary procedures. External advice can play an important role in this process. Creating effective manuals, delivering training, implementing policies, and conducting thorough research can enable employers to avoid claims or otherwise seek liability.
3. Alert supervisors. Supervisors, managers and employees (whether in positions of authority or not) could face individual liability under the revised law. To this end, and in addition to point “2”, employers should ensure that their employees know that they can be held personally liable for sexual harassment in the workplace – or not report it.

Texas employers who have questions or need help navigating this new legal landscape should contact Sheppard Mullin. Our Texas labor law experts are on hand to provide advice and support, from drafting, training, and enforcing policies to defending litigation.