Effective September 1, 2021, a pair of bills passed by the Texas Legislature will expand the scope of employer liability for claims of sexual harassment. The bill makes four important amendments to the Texas Commission on Human Rights Act (“Act”).
First the amendment defines what constitutes sexual harassment under state law. Sexual harassment means 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.
While Texas law did not previously provide a definition of sexual harassment, the definition does not meaningfully differ from the quid pro quo definition commonly used by the Courts.
Second, the law expands who can be a employer-defendant liable for sexual harassment. Under the current version of the statue, only employers employing 15 or more employees or agents acting on behalf of an employer are “employers” under the statute. Similarly, individual managers and supervisor were rarely even charged for claims of sexual harassment. Under the new law, an employer is any person that employs any employees — regardless of size. Significantly, the amendment also adds to the definition of employer any person that acts directly in the interest of an employer in relation to an employee. This change expands the reach of the statute to individual managers, supervisors, co-workers and potentially independent contractors and volunteers.
Third, the Act makes it an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors know or should have known that the conduct constituting sexual harassment was occurring; and fail to take immediate and appropriate corrective action.
Fourth, a companion bill lengthens the amount of time an employee has to file a charge of discrimination under state law from 180 days to 300 days.
Actions Employer Should Take to Prepare for these New Obligations
Because businesses with few than 15 employees may not have adequate measures in place to prepare for these new obligations, small employers should consider implementing the following:
- Employers of all sizes should promulgate anti-harassment policies that prohibit unlawful sexual harassment. The policies should be distributed to and and made available to all employees and contractors. Employer should also post these policies in break rooms and other common areas accessible to employees.
- Adopt and publish complaint procedures for employees to make complaints of potential discrimination and harassment.
- Employers should treat all such complaints seriously and promptly and thoroughly investigate them. Where complaints are substantiated, the employer should take immediate and appropriate corrective action designed to end the harassment.
- Train all employees on the employer’s anti-harassment policies, complaint procedures and all managers and supervisors on the employer’s compliance obligations and their potential individual liability for harassment.