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Significant changes to the Texas Labor Code regarding sexual harassment become effective September 1, 2021. These new provisions particularly impact smaller employers who were previously excluded from the definition of “employer” in the Texas Labor Code. In addition, the new statute identifies situations in which individuals, including managers, company owners, and HR professionals, can be sued and found liable for sexual harassment.

Definition of “Employer”

Under previous Texas law, the sexual harassment protections under Texas law applied only to employers with 15 or more employees for at least 20 weeks in a year. Under the new Section 21.141 of the Texas Labor Code, the sexual harassment protections apply to employers that have one or more employees. With the expanded definition of “employer,” virtually all Texas workplaces are covered by the sexual harassment laws. Note: these new revisions apply only to sexual harassment claims, not other forms of discrimination or harassment.

The definition of “employer” also includes individuals who act “directly in the interest of an employer in relation to an employee.” This newly expanded definition encompasses managers/supervisors, co-workers, company owners, and, potentially, customers, contractors, or third parties who regularly interact with employees. Thus, for the first time, individuals can be held personally liability for engaging in — or failing to prevent — sexual harassment.

Duty to Remedy Sexual Harassment

Currently, employers can be liable for coworker sexual harassment when the employer knew or should have known of the harassment and failed to take prompt remedial action. Under the new Texas law, an employer commits an “unlawful employment practice” if sexual harassment occurs and the employer, its agents, or supervisors either knew or should have known that sexually harassing conduct was occurring and failed to take immediate and appropriate corrective action.

The new law does not define what “immediate and appropriate corrective action” means. Courts will make a case-by-case factual inquiry as to whether an employer’s steps were sufficiently immediate and appropriate once made aware of sexual harassment allegations or conduct.

Longer Statute of Limitations for Sexual Harassment Claims

Claims for sexual harassment under the Texas Labor Code require an employee to file a charge of discrimination with the Texas Workforce Commission within 180 days of the acts alleged to constitute sexual harassment. Under the new law, the statute of limitations for filing a charge of sexual harassment is increased from 180 days to 300 days from the date of alleged harassment. The expanded limitations period only applies to sexual harassment claims based on conduct that takes place after September 1, 2021. The 180-day statute of limitations is unchanged for other types of alleged harassment (e.g., age, race, disability) and for conduct that occurred before September 1, 2021.

Takeaways

  1. Many smaller employers who were previously under the 15-employee threshold may not have policies or employee handbooks that prohibit sexual harassment. Those employers should immediately update or create anti-harassment policies, including reporting/complaint procedures and a framework for investigation.
  2. All employers should conduct training regarding complaint procedures, the duty to investigate, and the importance of immediate and appropriate corrective action. Training should also include anti-retaliation protections for employees who report and participate in investigation of sexual harassment claims.
  3. Individual employees must understand they have potential liability for harassing conduct or for failing to take appropriate action once an employee reports harassment. Even if an employee doesn’t complain, managers or supervisors who see sexually harassing conduct should escalate a report to HR or company management for prompt investigation.

For assistance with the new revisions to the Texas Labor Code, contact Clouse Brown PLLC. Our attorneys are available to assist employers and business owners in drafting company handbooks and policies and provide guidance on how to properly enforce such policies. Our attorneys are also experienced investigators who can provide a prompt and independent investigation of sexual harassment allegations.

Alyson Brown

About Alyson Brown

Alyson Brown represents employers and executives in all facets of the employment relationship. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Brown has tried cases in state and federal courts throughout Texas and in other states. She represents clients in a broad range of industries, including health care, banking, energy, high-tech, retail, manufacturing, hospitality, and nonprofit organizations. She can be reached at abrown@clousebrown.com.

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