Texas Adopts Expanded Protections For Workers Asserting Sexual Harassment Claims – Employment and HR

In a surprising move for what has historically been an extremely employer-friendly state, Texas Governor Greg Abbott recently signed two new bills (Senate Bill 45 and House Bill 21) protecting workers making sexual harassment claims under the Texas Labor Code . Both laws come into force on September 1, 2021. These new laws include a number of important changes for employers in Texas (related to sexual harassment claims), including a longer statute of limitations, a broader definition of who is considered an “employer,” the ability to have individual liability from supervisors, owners, HR professionals, and others Employees and an increased standard for employers to respond to internal complaints about sexual harassment. These changes do not apply to claims based on any other protected trait under the Texas Labor Code such as race, religion, color, age, etc.

Limitation period (House Bill 21)

Currently, prior to filing an unlawful employment practice under Chapter 21 of the Texas Labor Code, including sexual harassment, an employee must first file a discrimination charge with the Texas Workforce Commission within 180 days of the alleged unlawful employment practice. With the passage of House Bill 21 (which amends Section 21.201 (g) of the Texas Labor Code), Texas employees now have a much longer deadline to file their alleged sexual harassment complaint. Under this new law, if employees have a complaint of sexual harassment based on behavior that occurred on or after September 1, 2021, they can file their complaint with the Texas Workforce Commission within 300 days of the date of the alleged sexual harassment. Claims based on any other protected class under the Texas Labor Code (e.g. race, color, age, etc.) will continue to be subject to the current 180 day limitation period.

Extended definition of employer (Senate Act 45)

Under current Texas law, employees can only sue their employer for harassment or discrimination based on protected traits (including sexual harassment) if the employer has at least 15 employees. Senate Law 45 (codified in Section 21.141 of the Texas Labor Code) defines an “employer” as a person who employs one or more employees. This means that effective September 1, 2021, all Texas employers will be liable for sexual harassment claims made under the Texas Labor Code.

Risk of sole liability (Senate draft 45)

Another important difference from current Texas law is that the term “employer” includes, for the purposes of sexual harassment complaints only, anyone who “is acting directly in the interests of an employer in relation to an employee”. Accordingly, after September 1, 2021, supervisors, managers, HR officers, other employees and third parties can be named individually as defendants in a complaint for sexual harassment of an employee and made personally liable for damages. This change represents a seismic departure from current Texas law, which previously did not provide individual liability for harassment or discrimination claims under Texas Labor Law.

A side effect of this new law will be that it may eliminate the ability of an employer to refer a sexual harassment lawsuit to a federal court, which is often viewed as a more convenient place of jurisdiction for employers than state courts. Currently, employers outside of the state routinely remove sexual harassment lawsuits filed in a Texas state court based on a variety of citizenship grounds. If a non-diversified supervisor, human resources professional, or other employee (i.e., a Texas resident) is included as a defendant, the employer can open the case because of the diversity of the cases lead, as federal courts are more likely to issue summary judgments than state courts. If so, another side effect of this new law is likely to be an increase in the settlement value of these types of claims.

Increased standard for the response of an employer to employee complaints (Senate draft 45)

The new Texas law also provides that an employer will commit unlawful employment practice if an employee is sexually harassed and the employer or his or her agents or supervisors: “(1) know or need to know that the behavior that constitutes sexual harassment, has taken place; and (2) fail to take immediate and appropriate corrective action. “This new standard departs from current Texas law, which provides a potential defense to employers who take” immediate corrective action “in response to an employee complaint. What, however, is” immediate and appropriate corrective action “Is not defined in the new law, so the precise meaning of this phrase will certainly be the subject of litigation and remain a contentious issue until finally addressed by the Texas courts.

Act Now: Considerations for Employers in Texas

While there will be some uncertainties about these new laws that are unlikely to be resolved without judicial interpretation, employers should now take certain steps to prepare for these changes. First, before September 1, 2021, all Texas employers, regardless of size, should review and revise their Anti-Discrimination and Harassment Handbook Guidelines to ensure compliance with new Texan sexual harassment laws. For example, in recognition of the increased standards in Senate Act 45 for allegations of sexual harassment, a Texas employer’s policy should clearly state reporting procedures for employees and provide for “prompt” investigation of sexual harassment complaints and, if necessary, “appropriate” corrective action. Second, solid sexual harassment training is recommended for all employees. Finally, employers should also ensure that managers and HR staff are familiar with the employer’s reporting and investigative procedures, as individual workers could potentially be identified as defendants in a sexual harassment complaint.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.