Many states throughout the nation have been expanding employee protections under state and federal law. This year, Texas enacted two bills that significantly expand the protections for employees who assert a claim of sexual harassment under Chapter 21 of the Texas Labor Code.¹ These changes include:

• A broader definition of which entities are "employers" that may be liable for sexual harassment;
• The potential for supervisors, owners, and other employees to be personally liable for sexual harassment;
• Extended time for an employee to file a charge of sexual harassment; and
• A heightened standard for an employer's response to complaints of sexual harassment.

Broadened Definition of "Employer"

Beginning on September 1, 2021, all employers with any number of employees in Texas can be sued for sexual harassment. Previously, the law shielded employers with fewer than 15 employees for state law claims under Chapter 21. This amendment removes the "small employer" exception for sexual harassment claims, increasing the number of employers that can be sued in Texas.

Risk of Personal Liability for Managers, Supervisors, and Others

For purposes of sexual harassment claims, the definition of an "employer" under the Texas Labor Code was further expanded to include a person who "acts directly in the interest of an employer in relation to an employee." Prior to this amendment, only the business entity could be the subject of a sexual harassment lawsuit. After September 1, 2021, employees will be able to bring workplace sexual harassment lawsuits directly against managers, supervisors, officers, directors, owners, coworkers, or others who act on behalf of the employer. It is not yet clear whether this broadened definition will also be interpreted to extend to independent contractors, consultants, or advisors. This change represents a significant departure from current Texas law and effectively provides employees with a direct claim against coworkers, supervisors, and others for claims of sexual harassment.

Extended Time for Employees to File Claims

Beginning September 1, 2021, the new law will allow employees 300 days to file a charge of sexual harassment with the Texas Workforce Commission (TWC), which is 120 days longer than the time limitation applicable to charges based on other types of discriminatory practices. This change makes Texas law consistent with current federal law as it relates to the period that employees may assert claims of sexual harassment.

Heightened Standard Applicable to an Employer's Response

The new law also adds a requirement for employer remediation as it relates to the sexual harassment of an employee. Specifically, an employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or its 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." This new requirement is likely to lead to additional fact disputes regarding the timing of the alleged sexual harassment and the timing of an employer's response, in addition to the sufficiency of an employer's investigation of the complaint.

Codified Definition of "Sexual Harassment"

In addition, the new law codifies what courts have long recognized as conduct constituting sexual harassment. It defines "sexual harassment" as an "unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature" if:

• "Submission to the advance, request or conduct is made a term or condition of an individual's employment, either explicitly or implicitly;
• 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;
• The advance, request or conduct has the purpose or effect of unreasonably interfering with an individual's work performance; or
• The advance, request or conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment."

Practical Implications for Employers

Employers of all sizes with any Texas employees should revisit their handbooks or sexual harassment policies to ensure compliance with the new sexual harassment laws. For example, a policy should provide:

• A definition of what constitutes sexual harassment based on the codified language in the new law;
• The steps an employee should take if they experience sexual harassment;
• The steps others should take if they believe an employee is the subject of sexual harassment to limit allegations that an employer "should have known" that the conduct constituting sexual harassment was occurring; and
• The steps an employer should take to ensure that there is an "immediate" investigation of any conduct believed to be sexual harassment and, if necessary, that the employer takes "appropriate corrective action."

In addition to an up-to-date sexual harassment policy, employers should ensure that employees undergo sexual harassment training. Managerial and human resources personnel should particularly understand the reporting and investigation procedures as individual employees could be potentially named as a defendant in an employee's complaint of sexual harassment. All employers with Texas-based employees should understand these changes to the law governing sexual harassment in Texas, including by working with counsel to review existing practices and training.

[1] These changes apply only to claims of sexual harassment and not to claims based on other protected characteristics, such as race, age, and religion. All changes apply only to conduct occurring on or after September 1, 2021. The text of the bills may be found here: Senate Bill 45 and House Bill 21.