Starting on September 1, 2021, Texas’ sexual harassment law will have some fairly significant changes. This past summer, both the Texas state house and senate passed amendments to Section 21 of the Texas Labor Code. The most significant change is that the law will now apply to companies with one employee or more (previously the law only applied to employers with 15 or more employees). The new law now covers every employer in Texas. The definition of employer is also expanding to include individuals who act “directly in the interests of an employer in relation to an employee.” This means that supervisors and owners of companies can face individual liability for sexual harassment claims.
In addition, the legislature expanded what constitutes an unlawful employment practice. Employers will now face liability if an employee is sexually harassed “and the employer or employer’s agents or supervisors: (1) know or should have known that conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” This new standard mirrors federal sexual harassment laws in that it requires employers to take quick action to stop sexual harassment in the workplace. The updated standard is silent as to what constitutes “immediate and appropriate,” so we will need to wait for guidance from the courts. Employers should be mindful of this standard, though, in how promptly they investigate a sexual harassment complaint.
Lastly, the legislators have expanded the statute of limitations for an employee to file a Charge of Sexual Harassment Discrimination under Section 21 of the Texas Labor Code. Previously, an employee had to file a sexual harassment complaint within 180 days from the adverse action. The amended law expands the statute of limitations to 300 days, which is the same as the federal sexual harassment law.
These amendments are only limited to claims of sexual harassment, so other claims of discrimination under Section 21 of the Texas Labor Code are still limited to employers with at least 15 employees and have a 180-day statute of limitations. No doubt, though, these amendments to the sexual harassment law will increase the amount of claims we see filed against employers. For smaller companies, you should consider implementing sexual harassment training so that your management-level employees understand how to identify conduct that constitutes sexual harassment and how to take immediate and appropriate corrective action.
