Texas is not known for its employee-friendly laws. But on September 1, 2021, two amendments to the state labor code (H.B. 21 and S.B. 25) went into effect—providing a Texas-sized expansion of employee protections when it comes to sexual harassment in the workplace.

Longer Time Limit to File Sexual Harassment Claims

Employees now have an expanded time limit to file a complaint of sexual harassment. For conduct occurring on and after September 1, 2021, employees have 300 days from the date the sexual harassment occurred to file a complaint with the Texas Workforce Commission—up from the previous 180 day limit. This applies only to complaints of sexual harassment. Discrimination complaints on the basis of protected class under Texas labor law (race, color, disability, religion, sex, national origin, or age) must still be filed within the 180-day limit.

All Texas Employers Are Subject to Sexual Harassment Claims 

The definition of “employer” is significantly expanded for sexual harassment claims. Previously, an employer had to have at least 15 employees to face a claim of sexual harassment. Now, every Texas employer with at least one employee is subject to the new sexual harassment law.

Potential Liability Beyond the Employer 

Not only can the employer be held liable for sexual harassment, but the definition of “employer” is also expanded to include any person who “acts directly in the interests of an employer in relation to an employee.” This means that supervisors, human resource employees, and co-workers—even contractors and vendors who work with the employer—could be individually-named in a complaint filed with the state commission or in a subsequent lawsuit. The expansion of potential liability to people other than the employer itself is not commonly seen in other jurisdictions.

What constitutes sexual harassment?

The new Texas law provides a specific definition of “sexual harassment”:

• An unwelcome sexual advance,
• A request for a sexual favor, or
• Verbal or physical conduct of a sexual nature;

When:

• Submission to the advance, request, or conduct is made a term or condition of employment;
• Submission to or rejection of the advance, request, or conduct is used as the basis for a decision affecting employment;
• The advance, request, or conduct has the purpose or effect of unreasonably interfering with work performance; or
• The advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment

Employer Defenses

An employer commits an “unlawful employment practice” under Texas’ new law if sexual harassment occurs and the employer or the employer’s agents or supervisors:

(1) Know or should have known that sexual harassment was occurring, and

(2) Fail to take immediate and appropriate corrective action.

Employers that take steps to learn of sexual harassment occurring in the workplace and engage in immediate and appropriate action in response have a solid defense to sexual harassment claims. The new law does not define “immediate” or “appropriate corrective action,” so these terms will likely need more definition from the courts.

Prudent employers of all sizes in Texas should review their employment policies and practices regarding sexual harassment—or put them in place if none currently exist. Given the expansion of potential liability to other employees—like managers and human resource representatives— employers should ensure that they have a robust procedure providing employees with a means to report sexual harassment and for investigating any reports. Taking a head-in-the-sand approach will not shield an employer from liability—employers that “should have known” harassment was occurring but did not because of failure to put into place adequate reporting mechanisms will likely not have a defense. Training on sexual harassment for employees at all levels is highly recommended.

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