Texas Lawmakers Strengthen Employee Safeguards Against Sexual Harassment

Starting September 1, 2021, Texas law underwent significant changes regarding employer liability for sexual harassment claims. Previously, only employers with 15 or more employees were subject to scrutiny. Under the new legislation, any employer with “one or more employees” or acting “directly in the interests of an employer in relation to an employee” falls under this category.

Expanded Definition of ‘Employer’

Governor Greg Abbott approved Senate Bill 45 on May 30, 2021. This bill amended the Texas Labor Code by adding Section 21.141, which redefines an ’employer’ in Texas. Now, the term includes not just those who have one or more employees, but also those who operate “directly in the interests of an employer in relation to an employee.” This expansion implies that supervisors, coworkers, and even business associates could be named as defendants in sexual harassment lawsuits, which is expected to increase the volume of claims and lawsuits against employers.

Stricter Standards for Employer Response

The new law stipulates a more stringent criteria for how employers must respond to harassment claims. According to Section 21.141, an unlawful practice takes place if there is sexual harassment and if “the employer or employer’s agents or supervisors know or should have known that the conduct constituting sexual harassment was happening,” but failed to take “immediate and appropriate corrective action.” The phrase “immediate and appropriate corrective action” is likely to be the focus of numerous future legal disputes, as there will be ongoing debates about what constitutes a timely and adequate response from employers.

Extended Statute of Limitations

Another bill, House Bill 21, signed into law by Governor Abbott on June 9, 2021, alters the statute of limitations for filing a sexual harassment claim. The window for making such claims has been extended from 180 days to 300 days following the alleged incident. This new timeline only applies to sexual harassment claims and doesn’t affect the existing 180-day limitation for other types of discrimination complaints.

Key Implications

These legislative changes are expected to increase the number of claims and add a layer of ambiguity about what actions courts may consider as “immediate and appropriate.” The extended 300-day filing window also necessitates employers to be more vigilant in conducting investigations and maintaining records to prevent being caught off guard by delayed claims.

Employers should consider using the new extended filing period as an opportunity to diligently investigate any sexual harassment allegations and to meticulously document and maintain records of these investigations.