Texas Legislature Passes Overtly Employee-Friendly Reforms to Sexual Harassment Laws
Houston, Texas (September 9, 2021) – Perhaps surprising for Texas employers, the Texas legislature has significantly expanded sexual harassment protections for employees, rendering Texas’ state law protections more expansive than those provided by similar federal statutes.
These changes, which took effect on September 1, 2021, have significant practical implications, namely:
- Under the new law, claims for sexual harassment can be made against any employer that has at least one employee. Previously, under Texas law, like federal Title VII, businesses with 14 or fewer employees were exempt from lawsuits for sexual harassment. This change means all employers in Texas can be sued for sexual harassment. This change does not affect the 15-employee minimum requirement for all other types of discrimination claims.
- Further, the new law expands the time by which an employee must file a complaint for sexual harassment claims from 180 days to 300 days.
- Finally, the new law expands individual liability for sexual harassment. Under the federal law and previously in Texas, only an employing entity or one with hiring and firing authority was subject to liability. Now, employees can sue their employer and anyone who “acts directly in the interests of an employer in relation to an employee.” While this new term is not clearly defined and will be subject to court interpretation, this presumably includes managers, supervisors, and perhaps even co-workers. It remains unclear whether non-employees – such as independent contractors, vendors, or volunteers – could be held personally liable if they are acting in the interest of the employer, although the law appears to cover those individuals as well. A favorable caveat for employers, the new law applies only if the employer or employer’s agents or supervisors knew or should have known the harassing conduct was occurring and failed to take “immediate and appropriate corrective action.”
Texas lawmakers also passed another piece of legislation prohibiting the use of taxpayer dollars to settle a sexual harassment claim brought against any elected or appointed member of the executive, legislative, or judicial branches of government. Oddly, this may have the reverse of its intended effect because units of government will not be able to instigate or pay for settlements that might otherwise benefit a victim of sexual harassment.
It is unclear how Texas courts will interpret the new amendments, but there are good practices Texas employers can institute now in light of these new laws.
Employers of all sizes should create and disseminate an employee handbook and policies detailing a non-exhaustive list of conduct that constitutes harassment, a prohibition on harassment, and the steps an employee should take if they experience sexual harassment in the workplace. Similarly, employers with existing policies already in place should conduct a substantive review of current policies to ensure compliance with all harassment laws, including the new amendments, and to ensure an adequate reporting system exists. Employers should conduct periodic trainings for employees and supervisors on sexual harassment and reporting.
Finally, employers should strongly consider arbitration agreements with all employees to provide a prompt, cost-effective, and more private means of resolving all claims.
Each of these recommendations require careful analysis of a company’s policies, practices, and business. Lewis Brisbois’ Labor & Employment attorneys are available to provide assistance and counseling to all employers who have employees in Texas and throughout the United States.
For more information, contact the author or editors of this alert or visit our Labor & Employment Practice page to find an attorney in your area.
Victoriya V. Vidma, Associate
Thalia S. Rofos, Partner
William S. Helfand, Partner