In the wake of the #MeToo movement, Texas joins a growing number of states enacting legislation that enhances employee protections against sexual harassment in the workplace. Effective September 1, 2021, any Texas employer that employs one or more employees, as well as supervisors, co-workers, or other individuals associated with the employer, may be held liable for sexual harassment, and will be subject to a higher level of scrutiny under Texas law. In addition, the statute of limitations for filing sexual harassment claims in state court based on conduct that occurs on or after September 1, 2021, has been expanded from 180 days to 300 days.
Broadened Definition of “Employer” (Senate Bill 45)
On May 30, 2021, Texas Governor Greg Abbott signed Senate Bill 45 (“SB 45”) into law, expanding the definition of an “employer” and establishing a new standard for an employers’ response to sexual harassment claims.
Currently, under both state and federal law, only employers with 15 or more employees may be held liable for sexual harassment in the workplace. However, SB 45 added Section 21.141 to the Texas Labor Code, expanding the definition of “employer,” in the context of sexual harassment claims, to “a person who (a) employs one or more employees; or (b) acts directly in the interests of an employer in relation to an employee.”
As such, based on this broadened definition of “employer,” as of September 1, 2021, most employers in Texas may be held liable for sexual harassment. Equally significant, the inclusion of those that “act directly in the interests of an employer” in the definition of “employer” signals the possibility of imposing individual liability upon supervisors, co-workers, or other individuals associated with the employer, and will most certainly lead to an increased number of claims and lawsuits filed against employers in Texas for sexual harassment.
New Standard of Employers’ Response to Sexual Harassment Claims (Senate Bill 45)
SB 45 also establishes a new, and potentially heightened, standard for employers responding to sexual harassment claims. Under the newly added Section 21.141 of the Texas Labor Code, effective September 1, 2021, an employer commits an “unlawful employment practice,” if there is sexual harassment of an employee and “the employer or the employer’s agents or supervisors: (a) know or should have known that the conduct constituting sexual harassment was occurring; and (b) fail to take immediate and appropriate corrective action” (emphasis added).
Previously, an employer was entitled to an affirmative defense under both state and federal law if the employer took “prompt remedial action” in response to alleged sexual harassment. The definition of this heightened standard of “immediate and appropriate corrective action” is yet unclear, and will be most likely litigated and disputed between Texas employers and employees for the next few years to come. However, it is clear that the temporal proximity between the timing of the alleged sexual harassment and the employer’s response will be critical, as will be the thoroughness, effectiveness, and sufficiency of the employer’s investigation once a complaint is made, and the resulting corrective action, as warranted.
Longer Statute of Limitations for Sexual Harassment Claims (House Bill 21)
On June 9, 2021, Governor Abbott also signed into law House Bill 21 (“HB 21”), lengthening the statute of limitations for employees filing sexual harassment claims to 300 days from the date of the alleged harassment.
Specifically, HB 21 increases the amount of time employees have to file a charge of discrimination with the Texas Workforce Commission (“TWC”) alleging sexual harassment from the current timeline of 180 days to 300 days of the alleged sexual harassment. The 180-day statute of limitations was only applicable under Texas state law, while federal law allows employees to file a claim in federal court within 300 days of the alleged sexual harassment. HB 21 extends the statute of limitations, allowing Texas employees the same amount of time to pursue their claims of sexual harassment in state court, as they would have in federal court.
Notably, this newly lengthened statute of limitations applies solely to sexual harassment claims based on conduct that occurs on or after September 1, 2021. The 180-day statute of limitations for filing other types of discrimination claims under the Texas Labor Code remains unchanged.
What Texas Employers Should Do Now
- Review, update, or implement clear and effective anti-harassment policies that include a complaint procedure for reporting sexual harassment in the workplace.
- Ensure that a process is in place whereby sexual harassment complaints are seriously handled and immediately and thoroughly investigated and that corrective action is undertaken promptly, as necessary.
- Document, maintain, and retain records relevant to complaints of sexual harassment, investigations of any alleged sexual harassment, and any remedial action taken.
- Conduct periodic anti-harassment training for employees at all levels, including management, and educate all employees about the prospect of individual liability for sexual harassment in the workplace and/or failure to take immediate and appropriate corrective action.
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*Alexandria Adkins, a 2021 Summer Associate (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this Insight.