Millions of women (and men) across Texas could be impacted by a new law that took effect on September 1 – but not the one you likely have in mind. In an unexpected move from a typically very pro-business state, the Texas Legislature passed and Governor Abbott signed two bills (Senate Bill 45 and House Bill 21) that significantly expand sexual harassment protections for employees in Texas, making the state’s laws more robust than federal employment laws in some respects.
The changes to the Texas Commission on Human Rights Act apply prospectively to actions occurring on or after September 1, 2021, and expand liability to employers of any size in Texas as well as individuals and increase the time limit for filing a sexual harassment charge. The key changes affecting Texas employers (including those with no physical presence, but employing remote workers in the state) are discussed below.
Expanded Definition of Employer
Under Senate Bill 45 (codified at Section 21.141 of the Texas Labor Code), every Texas employer, no matter its size, may potentially be held liable for sexual-harassment claims asserted under the Texas Labor Code. The new state law defines an “employer” as “a person who: (A) employs one or more employees, or (B) acts directly in the interests of an employer in relation to an employee.” Previously, Texas employees could only bring a claim of sexual harassment against their employer if the employer had at least 15 employees, which is the current threshold under Title VII.
The addition of those who act “directly in the interests of an employer in relation to an employee” to the definition of “employer” may mean that individuals, such as supervisors, coworkers, managers, and human resources professionals, may now be named as defendants in an employee’s sexual harassment complaint and held personally liable for damages. Texas law did not previously provide for individual liability for any harassment claims under the Texas Labor Code.
Heightened Standard for Employer Response
Texas law previously required employers and managers to take “prompt remedial action” in response to an employee complaint of sexual harassment. As revised, the law states that an employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or its agents or supervisors: “(1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” (Emphasis added.) However, the Texas Labor Code does not define “immediate and appropriate corrective action,” and thus its meaning is likely to be a fact-specific and disputed inquiry addressed by the Texas courts.
Expanded Statute of Limitations
With the enactment of House Bill 21 (amending Section 21.201(g) of the Texas Labor Code), Texas employees will now have 300 days to file a complaint alleging sexual harassment with the Texas Workforce Commission, compared to the prior 180-day deadline. Federal law also sets the deadline to file a charge with the Equal Employment Opportunity Commission at 300 days. This expanded deadline will only apply to sexual-harassment claims based on conduct occurring on or after September 1, 2021. For claims based on any other protected class (e.g., race, color, age, etc.), the 180-day limitations period will still apply.
Employers may see increased sexual harassment litigation because of the new laws. Note that these changes apply only to sexual harassment claims and not other forms of discrimination or harassment. Employers should review and update their employee handbook and sexual harassment policies to reflect the changes in the law and in anticipation of increased litigation, including reporting/complaint procedures. It would also be a good idea for employers to require more training on the subject for managers, supervisors, and human resources personnel (including the duty to investigate and take immediate and appropriate corrective action), especially since these individuals could now face the risk of individual liability in such claims. Employers should also ensure their employees understand the applicable reporting procedure so the employer may take immediate action where required.