Texas is considered an employer-friendly state, so it may come as quite a surprise that several bills that significantly impact sex harassment law passed, without fanfare, in the last legislative session, and go into effect today, September 1, 2021.
More specifically, the legislature amended several sections of Chapter 21 of the Texas Labor Code, which includes the state’s version of Title VII, to be more in line with the laws of California. Here’s what employers need to know:
First, the legislature amended Chapter 21 to provide that with respect to sexual harassment, an “employer” is a person who employs 1 or more employees or “acts directly in the interest of an employer in relation to an employee.”
What does this mean and why does it matter?
Until today, Chapter 21 has applied to employers with 15 or more employees; therefore, this amendment now covers virtually every employer with respect to sex harassment claims. It also means that individual supervisors can be held liable for sex harassment, whereas prior to today, they could not.
Second, the legislature expanded the timeframe for an employee to file a charge of discrimination for sexual harassment from 180 days to 300 days. Conduct occurring before September 1, 2021 will be governed by the 180-day charge filing deadline.
Why should employers care?
Because an employee now has nearly double the amount of time to file a charge of discrimination related to sex harassment.
Third, the legislature included what clearly appears to be a heightened standard for employer responses to sex harassment claims. The new language provides that an “unlawful employment practice” occurs if there is sexual harassment of an employee 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.
Whether an employer’s actions to correct sexually harassing behavior were immediate and appropriate could, depending on how case law is developed, used, and interpreted, create fact issues precluding summary judgment for employers.
But wait, there’s more…
These changes have far wider implications for all employers in relation to, by way of example only, sex harassment investigations, insurance coverage, policy updates, management training, and job descriptions.
Contact me for more information on best practices for compliance.