Several significant expansions of Texas sexual harassment law will take effect on September 1, 2021 (see Senate Bill 45 – TX SB45 | 2021-2022 | 87th Legislature | LegiScan). These expansions make it critical for virtually all Texas businesses to adopt formal written policies and train workers on the prohibitions against sexual harassment.
First, any employer that employs only “one or more employees” will now be subject to sexual harassment claims under Texas law. This new law is a substantial change from current law, which holds only those employers with fifteen or more employees can be held liable for such claims.
Second, as of September 1, Texas law will define a potentially liable “employer” to include any person who “acts directly in the interests of an employer in relation to an employee” – signaling the possibility for individual liability against members of company management and owners in addition to entity liability.
Third, Texas Labor Code section 21.141 will include an arguably heightened standard for an employer’s response to complaints of sexual harassment, requiring employers to take “immediate and appropriate corrective action” when the employer knows or should know about the harassment. The legislature’s use of the word “immediate” differs from the widely accepted interpretations of federal and state equal employment opportunity statutes requiring “prompt” remedial action, and thus, it will remain to be seen whether the courts interpret this new language to impose a requirement for quicker action by employers upon their discovery of sexual harassment in their workplaces.
Fourth, the Texas legislature has also expanded the deadline for a claimant to file an administrative Charge of Discrimination from 180-days to 300-days from the alleged conduct (see House Bill 21 – TX HB21 | 2021-2022 | 87th Legislature | LegiScan).
Notably, these provisions for (1) small-employer liability, (2) potential individual liability, (3) a possible heightened standard for an employer’s response and (4) a longer statute of limitations have not been expanded to claims for other types of unlawful discrimination, such as, for example, racial harassment or retaliation claims, and instead are limited to claims for sexual harassment.
Now is a great time to adopt new or review and fortify existing corporate policies against sexual harassment and remind all employees of their duties to avoid and report this type of misconduct.
For further information on this topic, please reach out to blog author, April Walter, at firstname.lastname@example.org