New Texas Law Protects Victims of Sexual Harassment

In a surprising move, Texas Governor Greg Abbott enacted three bills: Senate Bill 45 (“SB 45”), Senate Bill 282 (“SB 282”) and Bill of House Law 21 (“HB 21”), which will extend the protection of victims of sexual harassment at work. Each bill came into force on September 1, 2021, revising vital parts of the Texas Commission on Human Rights Act (“the Act”). Major changes include expanding the definition of employer to include businesses with at least one employee, expanding the category of offenders to include individuals such as supervisors for failing to take immediate corrective action, increasing the legal reporting period from 180 to 300 days and prohibiting the use of taxpayer money to pay compensation for sexual harassment against appointed or elected officials and their staff. While the standard for other forms of discrimination such as race, national origin, sexual orientation and religion has remained unchanged, the focus on protecting victims of sexual harassment suggests that the #MeToo movement infiltrated the Texas legislature.

Who qualifies as an employer?

Previously, Chapter 21 of the Act defined an employer as a person “who has 15 or more employees”, according to the federal definition. Currently, thirteen states require an employer to have fifteen or more employees before an employee can file with their state or local agency. Twenty other states require an employer to have two to eight employees to be potentially liable for discriminatory behavior. Texas has joined a group of about seventeen states that require an employer to have only one employee, but in Texas this new definition of covered employers only applies when accused of harassment. sexual. SB 45 amends chapter 21 of the law so that it now reads that an employer is a natural person who employs “one or more employees”. The change would suggest that Texas is moving towards a more employee-friendly approach to handling cases of sexual harassment in the workplace. Texas has not adopted other policies aimed at eradicating other forms of gender discrimination, such as enacting paid family or sick leave provisions, or laws preventing systematic pay gaps, but the change remains a significant step towards better employee protection in Texas.

Another change in the definition of employer can offer significant additional benefits to victims of sexual harassment. Under SB 45, the definition of an employer now also includes any person who “acts directly in the best interests of an employer in relation to an employee”. Texas law, like Title VII, generally defines an employer as a person who employs the required number of people and any “agent” of such a person. Texas courts commonly interpret this formulation to exclude the individual liability of supervisors and managers, holding that they are only responsible as agents, not as individuals, and that does not mean that they are “employers” within the meaning of the law. See Sibley v. Kaiser Foundation Health Plan of Texas, 998 SW2d 399, 405 (Tx. Court of Appeal 1999). The new definition of employer in SB 45 provides the basis for an argument that supervisors and other agents of the employer, such as human resources representatives and managers, can be held individually liable for harm to workers. victims of sexual harassment.,

Employer’s responsibility in the event of sexual harassment

SB 45 also lowered the standard for establishing employer liability for sexual harassment. An employer engages in an illegal employment practice if an employee is sexually harassed and the employer “knew or should have known” but failed to take “immediate and appropriate corrective action”. Originally, employers were required to respond quickly to avoid liability for any harassment of which they were aware. The change to “immediate and appropriate” appears to create a reduced burden for employees making allegations of harassment. Although it has not yet been argued and interpreted by the courts, the temporal proximity between the reporting of a sexual harassment event and the employer’s response will likely be crucial evidence in establishing whether the employer has taken immediate and appropriate action.

The Texas Legislature provided in SB 282 that when complaints of sexual harassment are brought against a government official, that is, any elected or appointed member of the executive, judiciary or legislature, or their staff, taxpayer dollars cannot be used to pay compensation. for, or the settlement of, such claim. This provision is further indication that the Texas legislature was considering individuals to be held personally responsible in cases of sexual harassment.

Limitation and Potential Damages Rules

Finally, under HB 21, the deadline for filing a sexual harassment complaint with the Texas Workforce Commission has been extended to 300 days. Previously, an employee had only 180 days from the date of the last incident to file a complaint with the Texas Workforce Commission. Under federal law, an employee has 300 days to file a claim with the Equal Employment Opportunity Commission (“EEOC”) if a state or local agency enforces a law that prohibits discrimination. in employment on the same basis. Now, Texas employees filing a sexual harassment complaint will be granted an additional 120 days, mirroring the federal standard of 300 days.

Take away food

SB 45, SB 282, and HB 21 are sure to change the culture of the Texas workplace. With supervisors, managers and human resources professionals now potentially held personally accountable for how they handle complaints of sexual harassment, there will likely be a change in how these cases are investigated. Additionally, companies that employ even one employee will likely now be aware of sexual harassment, and large employers will invest in more training on sexual harassment and revamp their employee manuals to reflect the new provisions.

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