Texas Legislature revises sexual harassment laws to benefit employees

Excerpted from a Holland & Knight Blog by Barbara-Ellen Gaffney

Beginning Sept. 1, 2021, all Texas employers — regardless of headcount — will need to act swiftly when sexual harassment is reported, and take effective remedial measures to ensure that such harassment is corrected.

Two new workplace sexual harassment laws will take effect for Texas employers on Sept. 1, 2021. One extends the scope of parties who may be liable for employment-related sexual harassment. The other extends the deadline for employees to bring sexual harassment claims.

Overview of the New Laws
Under Senate Bill 45, the Texas Legislature added Section 21.141 to the Labor Code, which defines an “employer” as a person who either “employs one or more employees” or “acts directly in the interests of an employer in relation to an employee.” As a result, corporate managers and perhaps even supervisors may have personal liability even if they did not themselves engage in the sexually harassing conduct. The new definition also dramatically extends the statute’s sweep; previously, only employers with 15 or more employees were subject to sexual harassment claims.

The newly added Section 21.141 further states that an employer commits an “unlawful employment practice” if “sexual harassment of an employee occurs and the employer or employer’s 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).

The new law does not clarify what “immediate and appropriate corrective action” means. However, that standard is the same standard applicable to coworker harassment under Title VII. It thus appears that the liability for sexual harassment claims under Texas law arising from alleged supervisor conduct may now be subject to a somewhat more employer-friendly standard. As always, it is critical that an employer be able to demonstrate that it took the complaint seriously, conducted a prompt and diligent investigation, and took quick and appropriate remedial action.

House Bill 21 amended Section 21.201(g) of the Labor Code to expand the statute of limitations for sexual harassment claims under state law from 180 days to 300 days from the date of the alleged sexual harassment. The additional time period applies to sexual harassment claims only and does not affect the 180-day requirement for filing other state-law discrimination claims.

Conclusion and Considerations
All Texas businesses should take time now to review, or (if necessary) implement, anti-harassment policies and ensure that their policies provide a complaint procedure and a framework for promptly investigating reported sexual harassment and taking prompt and reasonable corrective action. Texas employers also should consider providing additional sexual harassment training for management and non-management employees.

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