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Two new Texas law which went into effect on September 1 will subject employers to a heightened level of scrutiny when it comes to Sexual Harassment claims. House Bill 21 (HB21) Senate Bill 45 (SB 45), which were signed into law earlier this year by Texas Governor Gregg Abbott, made several revisions to the Texas Labor code regarding workplace sexual harassment. HB 45 revises the definition for what is considered an “employer”, expands liability for sexual harassment, and heightens the standard for employer’s responses to sexual harassment. HB 21 increases the statute of limitations for sexual harassment claims.
Prior to September 1, Texas limited potential liability for claims of sexual harassment to employers with 15 or more employees. Under SB45, “employer” will now be defined as a person who “employs one or more employees”, or “acts directly in the interests of an employer in relation to an employee”.
This new definition means that employers with less than 15 employees will no longer be protected from harassment lawsuits. Consequently, virtually all Texas employers can be sued for sexual harassment claims.
Additionally, by including those who act “directly in the interests of an employer in relation to an employee” in the definition of employer, SB 45 expands liability for workplace sexual harassment to individuals such as supervisors, managers, contractors, etc. Previously under Texas law, individuals could not be named as defendants in workplace sexual harassment litigation.
Lastly, SB 45 increases the responsibility of employers to investigate and remedy claims of sexual harassment, beyond what is required by federal law. Previously Texas followed the same standard as federal law; allowing employers to bring an affirmative defense to liability if they had taken “prompt remedial action” in response to a sexual harassment complaint. However, HB 45 raises that standard, stating that an employer has acted unlawfully “[i]f sexual harassment of an employee occurs and the employer or the employer’s agents or supervisor (1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.”
In addition the expanded protection of SB 45, HB 21 expanded the statute of limitations for employees to file a claim of workplace sexual harassment. Prior to September 1st, employees who wished to file a workplace sexual harassment claim with the Texas Workforce Commission (the state agency which investigates such claims) were required to do so within 180 days of the event. With HB21 now in effect, employees will now have 300 days to file a complaint with the Workforce Commission.
While Texas legislation has certainly been a hot button issue recently, SB 45 and HB 21 can still be commended as pieces of legislation which help expand protections against sexual harassment in the workplace. Texas employers would be wise to review their own workplace training and policies to ensure they are compliant with the new law.
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