SB45 and HB21 went into effect September 1, 2021, and lengthened the time an individual has to report and added the provision that someone other than the person directly harassed could make a claim.
As an employer, you now hold more responsibility and liability for sexual harassment claims made against your employees or others working for you.
What Is Considered Sexual Harassment?
Texas defines sexual harassment as including any of these behaviors:
- Unwelcome advances
- Physical touching of a sexual nature
- Requests for sexual favors
Also, if these behaviors interfere with a person’s work performance or create an intimidating, hostile, or offensive work environment, the individual can file a sexual harassment claim. The use of the term “intimidating” may lower the threshold for a sexual harassment claim compared to previous laws.
One more thing — if the individual is subjected to adverse employment action because they rejected the above behavior or reported it, that person could file a claim. Sexual harassment occurs regardless of the sex of the individual.
Simple teasing, offhand comments, and isolated incidents may not be considered sexual harassment.
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Employer Liability Changes
The new law expands the group of people who, if they commit sexual harassment, might cause the employer to be liable:
- Direct supervisors or managers
- Agent of employer
- Supervisors or managers from a department separate from the employee’s
- Co-workers
- Non-employee performing work under the auspices of the employer
- HR professionals
- Third parties
Sexual harassment is considered an “unlawful employment practice” under the new laws.
Another critical change the law brings to employers is this: any employer with one or more employees can be held liable, reduced from employing 15 or more employees. Anyone acting directly in the interest of an employer in relation to an employee can be held liable.
Individuals and businesses considered likely employers would be jointly and severally liable for sexual harassment damages in Texas. The Texas Labor Code provides that compensatory damages (emotional distress and punitive damages) are awarded for each complainant instead of each defendant. The damages are joint awards, and individuals face the same responsibilities as employers to pay monetary damages.
Attorneys adding individuals to a sexual harassment lawsuit will not see additional damages, but they will have more leverage for discovery at trial.
Employers can be liable for damages for anyone affected by the offensive conduct, not just those who experienced harassment. Sexual harassment can occur with or without economic injury or discharge of the victim. The law’s main point is that the harasser’s behavior or conduct is unwelcome and must stop.
Statute of Limitations for Reporting Have Changed
Before the new laws took effect, a victim had only 180 days from the date of the alleged incident to file a claim. The limit is now 300 days, which is consistent with federal law. The employee has 300 days from the date of the incident to report it to the EEOC and Texas Workforce Commission when state and local anti-discrimination laws cover the charge.
Collateral Issues for the Employer
The new laws probably increase the settlement value in sexual harassment cases. The changes also potentially eliminate the employer’s ability to remove a sexual harassment lawsuit to federal court.
Previously, moving a sexual harassment case to a federal court was considered more favorable to employers in comparison to state courts. Many out-of-state lawyers moved these cases filed in Texas to federal court based on diversity of citizenship grounds.
Now, if a non-diverse supervisor, human resources professional, or other employee is added as a defendant to the case, the employer may not remove that case to federal court based on the diversity of parties claim.
Cases may result in significantly fewer summary judgments in sexual harassment claims, which happens more frequently in federal than state courts.
Something called the “continuing violation theory” can also increase liability for employers. An employee or group of employees can bring complaints from years of alleged harassment that would have been banned otherwise by the statute of limitations. As long as one act occurred within the statutory 300 days (and after September 1, 2021), the company is at risk of a resurgence of old claims.
Employer Response to Sexual Harassment
The previous standard of liability entitled the employer to defense as long as that employer took “prompt remedial action” in response to a sexual harassment complaint. Now the standard reads that the employer must take “immediate and appropriate corrective action,” including:
- Responding in a timely manner measured from the date of the alleged incident and the employer’s response
- Thorough, effective, and sufficient investigation once the complaint is made
- Corrective action as warranted
However, the meaning of “immediate and appropriate corrective action” is not defined within the new laws. Future cases and the Texas state courts will likely define it. However, employers are probably going to be held to a new standard.
The new standard of liability defines sexual harassment as an unlawful employment practice. The employer, employer’s agents, or supervisors know or should have known that conduct constituting sexual harassment occurred and failed to take immediate and appropriate corrective action.
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Best Practice for Victims
To ensure complete coverage under the law, anyone who feels threatened by sexual harassment should directly inform the harasser that the conduct is unwelcome and must stop. Then use any employer complaint mechanism or grievance system available to claim sexual harassment within 300 days of the incident. In addition, file it with the EEOC and Texas Workforce Commission.
What Should You, as an Employer, Do to Protect Against Sexual Harassment Claims?
All employers should review their sexual harassment policies to ensure consistency with the new laws. They should provide regular training on recognizing sexual harassment and using the appropriate procedures for investigation. Alternatively, employers can consult counsel or third-party human resource consultants to assist with the investigation.
Emphasize during training that the law has changed, and employer liability has increased. Train supervisors and managers on the new level of responsibility and their role in fulfilling their employer’s obligation to take “immediate and appropriate corrective action.”
Training includes reporting and investigation procedures. Maintain all training records and confirmation documents for potential use in a lawsuit. Training should occur periodically, not just once, and should include employees at all levels.
Final Note
Prevention is your best tool for eliminating sexual harassment in the workplace. It doesn’t matter how small your business is; you can be held liable if a single person acting directly in your business’s interest commits an offense.
Create policies to prevent sexual harassment and establish effective complaint or grievance procedures. Tell all employees that sexual harassment is not tolerated.
Immediately investigate and perform corrective action if sexual harassment is reported. The Civil Rights Division and the EEOC look at all the circumstances surrounding sexual harassment complaints, including the nature of the advance and the context in which the alleged incident occurred. Then they decide on a case-by-case basis.
The new Texas sexual harassment laws emphasize the zero-tolerance mindset of the general public. You can no longer turn a blind eye.
