The 2021 Texas Legislative Session tackled the issue of sexual harassment in the workplace by passing two new pieces of legislation that go into effect on September 1, 2021.¹ These laws create cause of action for sexual harassment in the workplace and also delineate protections for employees who work for smaller employers.

The History of Sexual Harassment Protection for Employees in Texas

Prior to the passage of this legislation, only interns who were sexually harassed were protected under Texas law.² The Texas Commission on Human Rights Act (TCHRA) did not protect employees from sexual harassment generally, and employees had to turn to federal law to find protection.³ Still, federal law only covered employers who had fifteen or more employees.⁴ This left Texas employees who worked for smaller employers (with fourteen or fewer employees) with no cause of action for sexual harassment.

The New Texas Laws on Sexual Harassment Allow a Cause of Action for All Employees

Senate Bill No. 45 addressed that problem by creating a cause of action under Texas law for sexual harassment for all employees. First, it defined an employer as a person who “employs one or more employee” or “acts directly in the interests of an employer in relation to an employee.”⁵ This expands the definition of an employer, and some predict that officers, directors, and even other employees in addition to direct supervisors could now be included in the definition of “employer.”⁶ This also could signal the possibility for individual liability against company managers, not just liability for the company.⁷ The language defining sexual harassment mirrors Texas Labor Code § 21.1065, which has protected unpaid interns from sexual harassment.⁸ The new bill uses the same language to define sexual harassment, only replacing references to “internship” with “employment” more generally.⁹

Senate Bill No. 45 also heightens the standard for employers’ responses to known harassment. Previously, employers were required to take “prompt remedial action.”¹⁰ Now, liability is imposed if an employer fails to take “immediate and appropriate corrective action.”¹¹ This may be interpreted by the courts as a more rigorous standard and will likely lead to fights over the timeline of when an employer learned of the harassment compared to when the employer took action, in addition to the sufficiency of investigation.¹²

The second bill, House Bill No. 21, extends the statute of limitations for sexual harassment claims under Texas law from 180 days to 300 days, mirroring the Title VII statute of limitations.¹³ This applies only to sexual harassment claims; other claims for unlawful employment practice will still have a statute of limitations of 180 days.¹⁴

These new bills expand the state law cause of action for employees who experience sexual harassment in Texas. An employee would still need to exhaust his or her administrative remedies, but now, employees would be able to do so through the Texas Workforce Commission rather than the U.S. Equal Employment Opportunity Commission. With this expansion, courts will be left to interpret (1) what additional parties can be held liable for sexual harassment (and whether they can be held personally liable); and (2) whether the corrective action was taken “immediately.”

Takeaways For Texas Employers

• As a practical matter, all Texas employers should ensure that they have a policy in place prohibiting unlawful conduct, including harassment, discrimination, and retaliation on the basis of sex and all other protected characteristics.
• The policy should also clearly delineate a complaint procedure that includes multiple avenues for an employee to assert a complaint, including alterative managers, human resources representatives, or owners.
• Employers should reassure employees that all complaints will be taken seriously, immediately investigated, and remediated where appropriate – then actually follow through when a complaint is lodged.
• It is also important to note that “immediate corrective action” may include separating the complainant and the accused in the workplace while avoiding any adverse impact on the complainant, or putting the complainant or accused on paid administrative leave pending the outcome of the investigation. This crucial step is designed to satisfy the employer’s duty to act immediately, prevent further interaction between those involved, and preserve the status quo for the investigation.
• Texas employers should also ensure all management employees are trained on how to avoid harassment in the workplace, promptly escalate any actual or suspected complaints, and partner with decision makers to take immediate corrective action, fully investigate the issues, and implement any appropriate remedial action.

Now more than ever, Texas business owners and managers need to understand that time is of the essence in responding to any harassment complaint, and they may face personal liability if they do not act properly. The attorneys at WSHB are uniquely poised to counsel employers, small and large, through every aspect of compliance.

Footnotes

1. S.B. No. 45 (creating a new act to impose liability for sexual harassment (1) on employers with at least one employee, and (2) on employers who fail to take immediate corrective action when they knew or should have known that sexual harassment was occurring). H.B. No. 21 (extending the statute of limitations from 180 days to 300 days for sexual harassment claims). Both bills in their entirety are attached to this memo as Ex. 1.

2. TEX. LABOR CODE ANN. § 21.1065 (West).

3. See 42 U.S.C. § 2000e.

4. 42 U.S.C.A. § 2000e(b) (West)

5. TEX. LABOR CODE ANN § 21.141(1).

6. Janet Hendrick & Lauren L. Baker, Texas Small Businesses Beware: New Laws Expand Liability for Sexual Harassment Claims, PHILLIPS MURRAH / (last visited Aug. 26, 2021); Greta Ravitsky & Alexandria Adkins, Texas Expands Employer Liability for Sexual Harassment Claims, Effective September 1, 2021, EPSTEIN BECKER GREEN (Aug. 20, 2021).

7. April Walter, Texas Expands Sexual Harassment Laws, Effective September 1, 2021, TEXAS LAW BLOG (July 20, 2021).

8. TEX. LABOR CODE ANN. § 21.1065 (West).

9. “(a) In this section, “sexual harassment” means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:

(1) submission to the advance, request, or conduct is made a term or condition of an individual’s internship, either explicitly or implicitly;

(2) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual’s internship;

(3) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance at the individual’s internship; or

(4) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.”

TEX. LABOR CODE ANN. § 21.1065 (West).

10. TEX. LABOR CODE ANN. § 21.1065 (West, 1993).

11. TEX. LABOR CODE ANN. § 21.142 (West).

12. Brandon Strey, Texas Legislature Expands Employee Protection for Sexual Harassment Claims, JDSUPRA (July 1, 2021).

13. TEX. LABOR CODE ANN. § 21.201(g).

14. Id.