Texas Provides Protections for Employees Asserting Sexual Harassment Claims

In recent years, states throughout the nation have expanded protections for employees in the workplace. Most recently, Texas Governor Greg Abbot signed two new bills (SB 45 and HB 21) that went into effect on September 1, 2021. The laws give employees new protections against sexual harassment in the workplace and implements key revisions to preexisting state law.

First, the definition of an “employer” has expanded. Previously, an employer had to have 15 or more employees to be covered by the anti-sexual harassment laws. As of September 1, 2021, the law defines an “employer” as a person who employs “one or more employees.” Under this revised definition, all employers including those with as few as one employee could be held liable for damages for workplace sexual harassment. To this end, virtually all Texas employers are now within the statute’s reach, resulting in far more Texas employees being able to sue for sexual harassment.

The legal definition of “employer” was further expanded for purposes of sexual harassment claims to include a person who “acts directly in the interest of an employer in relation to an employee.” Before this amendment, only a business could be the subject of a sexual harassment lawsuit. Now supervisors, managers, and co-workers may also be named defendants in sexual harassment lawsuits and could potentially be held individually liable for damages. It is unclear whether this definition will be extended to independent contractors, consultants, or advisors of a business. Nevertheless, an employer should look into reviewing their vendor and service agreements with contract partners for issues of potential liability.

The new law also extends the time for an employee to file a charge of sexual harassment. The prior statute of limitations required an employee to file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged unlawful employment practice. Under the new law, for a sexual-harassment complaint based on conduct occurring on or after September 1st, employees will be allowed to file their charge with the Texas Workforce Commission within 300 days after the date the alleged sexual harassment or retaliation occurred. This change makes the filing period for state claims the same as its federal counterpart.

Finally, the new law also increases the duty of an employer to investigate and remedy claims of sexual harassment. Prior to enactment, and in line with federal law, Texas employers were able to raise an affirmative defense to liability if they took “remedial action” in response to a sexual harassment complaint. Senate Bill 45 now states that an employer acts unlawfully “if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisor know or should have known that the conduct constituting sexual harassment was occurring; and fail to take immediate and appropriate corrective action.”  Although the exact timing of an employer’s response is not clear, and it can be difficult to predict how courts will apply this new provision, employers should make every effort to avoid any delays when responding to an employee’s sexual harassment complaint.

These changes in Texas are consistent with the broader national shift to expand protections against sexual harassment under both federal, state and city human rights laws. Employers should make sure to review and revise their employee handbooks, policies and procedures and make sure the policies are in compliance with the new Texas sexual harassment laws. Attorneys at The Boyd Law Group are monitoring these and other changes and stand ready to assist our employee and employer clients in navigating these developing changes in the employment laws to help “take the worry out of your work.”