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Texas Law Expands Liability for Sexual Harassment Claims effective September 1, 2021

Texas Law expands Sexual Harassment Claims | McKay Law

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Sexual harassment is defined as “the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace or other professional or social situation. Governor Abbott recently signed into law sweeping legislative change in workplace sexual harassment. 

The new laws allow claims for sexual harassment to be made against a much broader group of employers in Texas because of two recently passed significant amendments, SB 45 and HB 21, to the Texas Labor Code. Texas, previously an employer-friendly state has voiced its changed ideas with these amendments. The stricter employee-friendly changes will go into effect on September 1, 2021.

Currently, under Texas law, employees at companies with 14 or fewer employers cannot file a sexual harassment claim with the Texas Workforce Commission (“TWC”). Under the new law, employers with as few as one employee can be sued. Further, the current statute of limitations for sexual harassment claims requires an employee to file within 180 days of the harassment. The new statute of limitations will climb from 180 days to 300 days. The new amendments will also now allow employees to file sexual harassment lawsuits against supervisors, coworkers, and other individuals can also be held personally liable for sexual harassment.

 These changes have practical implications for employers:

  • While employees have always had 300 days to file sexual harassment claims with the Equal Employment Opportunity Commission under federal law, this new change allows employees to file those claims with the TWC for up to 300 days. Employers can now be on held liable for state law claims for longer periods of time. The extension of the statute of limitation, however, only applies to alleged harassment that took place on or after September 1, 2021.
  • The most significant change is that all employers that have at least one employee are now subject to sexual harassment lawsuits. This amendment will substantially increase the number of employers that can be sued for sexual harassment in Texas.
  • Finally, the exposure to individual liability has expanded. Prior to this new amendment, employees could sue only their employer for sexual harassment. An individual supervisor could not be sued in his/her individual capacity for sexual harassment; although, claims for assault could be brought against the alleged harasser based on the conduct alleged to support a sexual harassment claim against the employer. That is no longer the case. Starting September 1, 2021, employees can sue their employer and anyone who “acts directly in the interests of an employer in relation to an employee.” Presumably, this includes managers, supervisors, and coworkers because they often act for their employers. It remains unclear whether non-employees (independent contractors, vendors, or volunteers) can be held personally liable if they are acting in the interest of the employer, although the law appears to cover those individuals as well.

The new law only applies to claims of sexual harassment, the old rules apply to all other forms of discrimination, harassment and retaliation.

The new amendments apply only if the employer (or agents) knew or should have known the conduct constituting harassment was occurring and failed to take immediate and appropriate corrective action.

A defense to these claims currently exists with similar requirements; however, the new law places the burden on the employee to prove those allegations. Therefore, professional investigation and knowledgeable and experienced sexual harassment lawyers are a necessity. However, the Legislature chose to intensify the requirements which now require “immediate” and appropriate corrective action, which is arguably a much  higher standard than “prompt” action than the previous law.

It is unclear how Texas courts will interpret the new amendments, but there are changes that Texas employers are required to institute in light of the amendments. Employers of all sizes, are now required by law to create and disseminate an employee handbook (or a specific policy) detailing what constitutes harassment, a prohibition on harassment, and the steps an employee should take if they experience sexual harassment in the workplace.

Similarly, if such policies are in place, employers should conduct a substantive review of current policies to ensure compliance with the new amendments and current state of the law on harassment and to ensure an adequate reporting system exists. Finally, employers must conduct periodic (at least annually) trainings for employees and supervisors on sexual harassment and reporting. If you are being sexually harassed and your employer is not complying with these new directives under the changed law, you may have a sizeable claim against your employer. Potential sexual harassment claims are not limited to the workplace but include any professional environment and social environment or situation.

McKay Law has significant experience reviewing handbooks and policies and ensuring they are in compliance with state specific new laws, as well as conducting trainings for employees and supervisors. As a result of this experience, McKay Law is uniquely positioned to attack employers who are deficient in their responsibilities under the new law.  We are happy to help you recover the damages you deserve if you are being sexually harassed at work in a professional setting or in a social setting.

Texas Law expands Sexual Harassment Claims | McKay Law

The new Texas laws include a number of significant changes for employers in Texas (related to sexual-harassment claims), including a longer statute of limitations, a broader definition of who qualifies as an “employer,” the potential for individual liability of supervisors, owners, human resources professionals, and other employees, and a heightened standard for employers to respond to internal sexual harassment complaints. These changes do not apply to claims based on other protected characteristics under the Texas Labor Code, such as race, religion, color, age, etc.

Statute of Limitations

Currently, prior to filing a lawsuit relating to an unlawful employment practice under Chapter 21 of the Texas Labor Code, including sexual harassment, an employee must first file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged unlawful employment practice.  With the enactment of HB 21 (which amends Section 21.201(g) of the Texas Labor Code), Texas employees will now have a much longer period of time to file their complaint alleging sexual harassment. 

Under this new law, for a sexual-harassment complaint based on conduct occurring on or after Sept. 1, employees will be allowed to file their charge with the Texas Workforce Commission within 300 days after the date the alleged sexual harassment occurred.  For claims based on any other protected class under the Texas Labor Code (e.g., race, color, age, etc.), the current statute of limitations of 180 days will continue to apply.

Expanded Employer Definition

Under current Texas law, employees can only bring a claim of harassment or discrimination based on protected characteristics (including sexual harassment) against their employer, if the employer has at least 15 employees.  SB 45 (codified at Section 21.141 of the Texas Labor Code) defines an “employer” as a person who employs one or more employees.  This means that, beginning September 1, 2021, effectively any and all employers in Texas may be held liable for sexual-harassment claims asserted under the Texas Labor Code.

Texas Law expands Sexual Harassment Claims | McKay Law

Risk of Individual Liability

Another key distinction of the new law from current Texas law is that, for purposes of sexual-harassment claims only, the term “employer” also includes any person who “acts directly in the interests of an employer in

relation to an employee.” Accordingly, after Sept. 1. supervisors, managers, human resources professionals, other employees and third parties may be named individually as defendants in an employee’s sexual harassment complaint and held personally liable for damages. This change represents a seismic divergence from current Texas law, which did not previously provide for individual liability for any harassment or discrimination claims under the Texas Labor Code. 

A collateral effect of this new law will be its potential to foreclose an employer’s ability to remove a sexual-harassment lawsuit to federal court, which is often viewed as being a more favorable venue for employers, in comparison to state courts. Currently, out-of-state employers routinely remove sexual harassment claims filed in Texas state court to federal court, based on diversity of citizenship grounds. If a non-diverse supervisor, human resources professional, or other employee (i.e., a Texas resident) is added as a defendant to the lawsuit, the employer will no longer be able to remove the case to federal court based on the diversity of the parties. 

Thus, this new Texas law may result in far fewer summary judgments on sexual harassment claims, as federal courts are more likely to grant summary judgment, compared to state courts, as a general proposition. If this occurs, then another collateral effect of this new law will likely be an increase in the settlement value of these types of claims.

Heightened Standard for Employer Response

The new Texas law also provides that an employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or its 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.” This new standard deviates from current Texas law, which provides a potential defense to employers that take “prompt remedial action” in response to an employee complaint. 

However, what constitutes “immediate and appropriate corrective action” is not defined in the new law, so the exact meaning of this phrase will certainly be the subject of litigation, and remain a disputed issue, until it is definitively addressed by the Texas courts.

McKay Law is eager to boldly but confidentially fight and protect anyone who may be the victim of sexual harassment

The sexual harassment attorneys at McKay Law have extensive experience investigating, preparing, and litigating employment sexual harassment claims. We have a proud history of providing compassionate advocacy for victims of workplace harassment, and dedicate ourselves to stopping the harassment and seeking full compensation for our clients.

To find out if you may be eligible for legal recourse through a sexual harassment lawsuit, do not hesitate to Call us today at (903) 999-2653 or submit your case for a free case review with McKay Law.

Texas Law expands Sexual Harassment Claims | McKay Law

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