In the latest legislative session Texas lawmakers enacted a number of critical changes to the state’s longstanding legal framework for workplace sexual harassment claims, as set forth in Chapter 21 of the Texas Labor Code. Three of those changes, which will go into effect on September 1, 2021, are of particular importance to Texas employers and will have a major impact on how businesses in the state handle sexual harassment claims.
Expanded Limitations Period
Aggrieved employees can now file an administrative charge asserting claims for sexual harassment any time within 300 days of the date of the alleged harassment, as opposed to 180 days as the law previously mandated.
Small Business and Individual Lability
Under Texas Labor Code Chapter 21 an employer can be sued and potentially held liable for sexual harassment that occurs in its workplace. Previously, a business was required to have 15 or more employees to fall within the scope of Chapter 21, and the term “employer” was read to mean only the employing entity itself, leaving individual supervisors and co-workers free from liability. However, the legislature has now expanded the definition to encompass any person or entity who employs one or more employees, or “acts directly in the interests of an employer in relation to an employee.” In doing so, they have broadened the reach of the law to encompass businesses or persons who employ even one employee, and also individual supervisors or co-workers who perpetrate acts of sexual harassment in the workplace. Thus, small businesses and individual bad actors who previously had an easy “out” from sexual harassment lawsuits brought under Chapter 21 will no longer be immune from such claims.
Heightened Burden to Remedy Harassment
Prior to the latest revisions, under Chapter 21 — which was modeled after Title VII of the Civil Rights Act — an employer was required to take prompt remedial action calculated to end the harassment in order to ward off liability for claims brought by aggrieved employees. However, the Texas legislature has now set out a seemingly different standard for claims brought under Chapter 21, which requires employers to take “immediate and appropriate corrective action” to end harassment that they know or should know about. With these changes, more so than ever, the focus of state law sexual harassment claims will be on how quickly and effectively employers respond to claims of sexual harassment.
These revisions mark a significant intensification of the state’s treatment of workplace sexual harassment claims, and employers should review their sexual harassment policies and training to ensure that they have a framework in place to account for the heightened scrutiny that they will now face.
The two pieces of legislation that generated these changes are Senate Bill 45, signed into law on May 30, 2021, which can be accessed here, and House Bill 21, signed into law on June 9, 2021, which can be accessed here.