Texas Expands Protections Against Sexual Harassment

Smith, Gambrell & Russell, LLP

On September 1, 2021, two new Texas laws, Senate Bill 45 and House Bill 21, went into effect expanding sexual harassment protections for employees under Chapter 21 of the Texas Labor Code.  These two laws change the definition of “employer,” add a heightened standard for employers to respond to internal sexual harassment complaints, and expand the statute of limitations to file a sexual harassment complaint with the state agency.

An “Employer” as defined by Senate Bill 45

Senate Bill 45 added sexual harassment specific definitions to the Texas Commission on Human Rights Act (“TCHRA”), Labor Code Chapter 21.  Specifically, for purposes of being held liable for sexual harassment under the TCHRA, an “employer” is defined as an entity who employs “one of more employees,” or “acts directly in the interests of an employer in relation to an employee.”  This modified the previous “employer” definition under the TCHRA of 15 or more employees to now include any business or persons who employ even one employee and creates personal liability for supervisors for sexual harassment claims.

Responding to Internal Sexual Harassment Complaints

Senate Bill 45 modified the TCHRA to add that an employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the 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.”  Unfortunately, “immediate and appropriate corrective action” is not defined in the current or new law.  While this will likely be the subject of litigation under this standard, “immediate and appropriate corrective action” will ultimately depend on the particular factual circumstances of the claim.  The Equal Employment Opportunity Commission typically requires “immediate and appropriate corrective action” to include discipline, whenever it determines that harassment has occurred in violation of the employer’s policy, but each situation will be unique and employers should focus on taking appropriate action as soon as possible when a sexual harassment complaint is received.

Statute of Limitations Expanded

House Bill 21 expanded the period of time for employees to file a charge of discrimination with the Texas Workforce Commission alleging sexual harassment from within 180 days to “within 300 days after the alleged sexual harassment occurred.”

Employers should review their employee handbook or specific policies detailing harassment, prohibition on harassment, and reporting procedures to ensure that these policies are up to date with the changes specific to sexual harassment.  Please note that these changes are only specific to claims of sexual harassment under TCHRA.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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