Are You Ready?

New Texas sexual harassment laws effective September 1, 2021. Cover employers with as few as one employee.
Businessman placing hand on female colleague's shoulder

Dear Employer: If you employ even just ONE employee, time to listen up! New Texas sexual harassment laws that go into effect on September 1, 2021 cover Texas employers that employ as few as a single employee. Pretty comprehensive, right?


The Texas legislature has passed two new bills that significantly increase Texas employers’ responsibilities relating to sexual harassment. The time has arrived to focus – or refocus – on preventing and properly redressing sexual harassment – whether you are new to coverage by sexual harassment prohibitions or an employer long covered by those laws, but who has put the subject on a back burner to try to handle the avalanche of COVID-19 difficulties.


These expansions add real urgency to the need for Texas businesses to adopt formal written policies and train workers on the prohibitions against sexual harassment. Do your workers understand what sexual harassment is and what lines not to cross? Do they understand how to report problems? Do they know that now they may be held individually liable?


Remember, also, that policies publicized to the workforce are critical to several defenses to sexual harassment, as well as having practical prevention value.


Effective Date

The new laws become effective on September 1, 2021and apply to claims based on conduct that occurs on or after September 1, 2021. A claim based on conduct that occurred before September 1, 2021 is governed by the law in effect on the date the conduct allegedly occurred.


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What Are the New Laws?


Coverage for Employers Who Employ One Employee

First, as noted above, any employer that employs only “one or more employees” will now be subject to sexual harassment claims under Texas law. This new law is a substantial change from current law, under which only employers with fifteen or more employees can be held liable for such claims. Small employers who do not already have sexual harassment policies should get busy implementing one before September 1, 2021.


Potential Liability for Individuals

Second, as of September 1, Texas law will define a potentially liable “employer” to include any person who “acts directly in the interests of an employer in relation to an employee.” Under current law, only employers can be held liable for sexual harassment as such. Individual employees are typically held liable only if they commit an independent wrong, such as assault, battery, or defamation, but not under Title VII or Chapter 21 of the Texas Labor Code. The new definition signals the possibility of individual liability against members of company management and owners in addition to liability on the part of the business entity.


In fact, allowing suit against individuals is exactly what the Texas Workforce Commission says the new law does: “The sexual harassment laws have been amended as to who can file a complaint, the response an employer must take, and now allows employees to file sexual harassment lawsuits against supervisors and coworkers in their individual capacity, as well as anyone who “acts directly in the interests of an employer in relation to an employee.” This can include supervisors, managers, HR personnel, and shift leaders.” That pronouncement is set out in the Civil Rights Division’s August 17, 2021 newsletter.


Therefore, conducting refresher training as quickly as that can be scheduled could be quite valuable, and individual employees may just pay closer attention knowing that they could be on the line personally in a suit….


Faster Response Time Apparently Required

Third, Texas Labor Code section 21.141 appears to impose a higher standard for an employer’s response to complaints of sexual harassment, requiring employers to take “immediate and appropriate corrective action” when “the employer or the employer’s agents or supervisors know or should have known” that the conduct was occurring. “Immediate” sounds pretty fast, doesn’t it?


Under current law, the accepted standard requires “prompt” response and remedial action. Whether courts will interpret this new language to impose a requirement of quicker action by employers upon their discovery of sexual harassment in their workplaces remains to be seen. Based on its employer advisories on this subject, the Texas Workforce Commission is apparently taking the position that the law will require action that is quicker than a mere “prompt” response.


Therefore, employers would be wise to hop right on the investigation of any complaints. If an investigation cannot be started right away or if delays interfere with completion, a business would be wise to include documentation within its investigation records supporting the reasons for any delays.


Also bear in mind that the new law may be interpreted as expanding the scope of persons whose knowledge of improper conduct may start the clock running.


Expanded Period for Filing Charge

Fourth, the Texas legislature has also expanded the deadline for a claimant to file an administrative charge of discrimination under state law from 180-days to 300-days after the alleged conduct. This won’t have as much practical effect as the other changes since Title VII already allowed 300 days for Texas employees to file charges of sexual harassment under Title VII. However, employees will have the benefit of the extra time now to take advantage of the new twists in Texas sexual harassment law.


The new statutory provisions for (1) small-employer liability, (2) potential individual liability, (3) a possible heightened standard for an employer’s response, and (4) a longer statute of limitations are limited to claims for sexual harassment. They do not encompass other types of state law discrimination or retaliation claims. Nonetheless, employers should routinely keep an ear to the ground to pick up on indications of any kind of trouble and move quickly to determine what is going on and, if something needs to be corrected, getting that done.


Remind Me: What Counts as Sexual Harassment?

Finally, the definition of sexual harassment in the new statute remains consistent with existing state law. For anyone in need of a refresher, the new Labor Code definition uses this familiar definition:


“Sexual harassment” means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:


(A) submission to the advance, request, or conduct is made a term or condition of an individual’s internship, either explicitly or implicitly;

(B) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual’s employment;

(C) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance at the individual’s work performance; or

(D) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.


(Bright idea: now is a good time for a refresher for everyone!)


Note: Nothing in this summary is legal advice. The content provides general information only. Always consult competent legal counsel for advice concerning your particular circumstances and needs.