Changes to workplace sexual harassment law in Texas

Employers should take note of recent amendments to the Texas Labor Code that will go into effect on September 1st (HB 21 and SB 45) regarding sexual harassment claims.

These new provisions, which will apply to all Texas employers, extend the charge filing deadline for sexual harassment claims, subject supervisors, managers and other agents to individual liability, and modify the standard for an employer’s response to sexual harassment. 

The amendments broaden the definition of “employer” for sexual harassment claims to include businesses that employ one or more employees. However, the prior definition of “employer,” which included only businesses that employ 15 or more employees, will continue to apply to other types of discrimination and harassment. Significantly, the amendments also expand the definition of “employer” to include any person who "acts directly in the interests of an employer in relation to an employee."

Thus, supervisors, managers and other agents can now be subject to individual liability for acts of sexual harassment directed toward employees. Prior to these amendments, only the actual employing entity could be held liable and responsible for paying any damage award. Additionally, the amendments extend the deadline to file a charge of discrimination with the Texas Workforce Commission to 300 days, though the 180-day charge filing deadline will continue to apply to other types of discrimination and harassment claims. 

The new provisions further state 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." While the new law does not clarify what "immediate and appropriate corrective action" means, this standard diverges from current Texas law, which provides a potential defense to employers that take "prompt remedial action" in response to an employee complaint.

While it remains to be seen how significant of a change this seemingly different standard is, it will certainly be the subject of litigation as courts grapple with how to interpret it.

Given these significant changes in the law, Texas employers should update their harassment policies, conduct training regarding complaint procedures and be watchful for signs of sexual harassment in order to take immediate and appropriate corrective action. 

Tom Reddin and Josh Owings are available to answer any questions you may have.