The New Texas Sexual Harassment Laws: 3 Changes That Employers Must Act On
As of September 1, 2021, the Texas Labor Code has expanded protections to employees regarding claims of sexual harassment, even beyond those traditionally provided by federal law. The new Texas sexual harassment laws, provide several limitations that will require all employers to take immediate actions to ensure their policies and practices stay compliant.
This article will go over the specifications of Senate Bill 45 and House Bill 21, which are the two new laws regarding workplace sexual harassment complaints in Texas. We will also discuss the preventive measures you must take as an employer to ensure your company complies with the new requirements.
In EasyLlama, we can help you raise awareness among your employees with the best sexual harassment training. Our courses meet all federal, state, and local requirements.
What Are the Changes Made to the Sexual Harassment Laws in Texas?
All Texas employers should be aware of three critical changes made to the sexual harassment law:
- A new statute of limitations
- A broader meaning of the term "Employer"
- An elevated standard of employers' response to complaints.
Let's review each of these changes in depth.
Statute of Limitations
Employees now have a longer time to file a workplace sexual harassment complaint against their employers. Currently, the Texas Labor Code (Section 21.202), gives employees 180 days to file a complaint with the Texas Workforce Commission for any unlawful employment practice (discrimination or harassment).
The new House Bill 21 (effective September 1, 2021) extends the filing period to 300 days (from the alleged incident) ONLY for claims of sexual harassment discrimination. Keep in mind that this extension does not apply to any other complaints, including retaliation for sexual harassment complaints or claims regarding any other protected characteristic.
The filing period extension applies only to sexual harassment complaints based on conduct occurring on or after September 1, 2021.
Expansion of the Term "Employer"
Another important aspect of the new sexual harassment law is the extended liability through expanding the "Employer" definition. According to the new Senate Bill 45, an employer is a person who:
a) Employs one or more employees
Unlike federal law, which applies only to employers with 15 or more employees, Texas law expanded liability to any person who employs one or more employees. The law applies to employers in all industries.
With the elimination of the 15-employee minimum for sexual harassment claims, many small businesses can now be sued and held liable for sexual harassment. As a result, all Texas employers regardless of workforce size must be prepared for legal compliance under the revised statute.
b) Acts directly in the interest of the employer concerning an employee
Only for sexual harassment claims, the term "employer" now also includes anyone who "acts directly in the interest of the employer concerning an employee". This means that managers, supervisors, human resources professionals, and anyone with authority over an employee can be held liable for sexual harassment.
Any individual who has the power to hire, fire, or make compensation decisions about a specific employee may be considered to act "directly in the interests of an employer", therefore making them liable for sexual harassment even if they did not participate in the harassment act itself.
Employers' Response
Senate Bill 45 also establishes a new standard for employers' response to sexual harassment claims. According to the new Section 21.141 of the Texas Labor Code an employer is liable for sexual harassment charges if "the employer or the employer's agents or supervisors: a) know or should have known about the harassing conduct; and b) failed to take immediate and appropriate corrective action".
But how is this different from the previous standard of response?
Immediate and Appropriate Corrective Action
In this aspect, the new requirement is the opposite of the prior law. Previously, an employer could avoid sexual harassment claims by proving that the company took "prompt remedial action" in response to a sexual harassment complaint.
The new law requires proof of these actions BEFORE the harassment complaint is filed. The definition of "immediate and appropriate corrective action" is still unclear, and will be determined by Texas courts. However, it holds employers to a higher standard, where only "taking action" after a complaint will not be sufficient.
Note: if you want a sexual harassment seminar to train your employees to be compliant under the law, try EasyLlama. Our bite-sized videos make it a breeze to get your employees certified. Get in touch for a free trial today.
What Is Next for Employers?
Given that the new Texas sexual harassment law is already in effect, employers must act immediately. An in-depth review and potentially update of your company's policies should be a priority. To increase awareness, train employees at all levels. These are the immediate steps you should take.
Review Your Policies and Complaint Procedures
You must take the time to review (or implement if necessary) your anti-harassment policies as well as complaint and investigation procedures. Ensure open communication with your employees and make them aware of all the channels available to submit complaints. Additionally, proper investigation documentation is now a requirement to defend your organization and individual employees against sexual harassment claims in Texas.
Ensure you are thorough when documenting complaints, including how and when you became aware of the alleged sexual harassment, the steps you took as an employer to investigate the complaint, and corrective actions taken in response.
Implement a Zero-Tolerance Policy
The new sexual harassment law puts emphasis on a zero-tolerance mindset that you should implement in your company. All employees must be aware of unwelcome behavior in the workplace and strict consequences (including termination) should be disclosed in your policy.
Especially owners of small businesses who may not have previously been subject to sexual harassment claims must create and communicate anti-harassment and zero-tolerance policies. It is also important for companies to develop a Code of Conduct for compliance and to minimize any type of harassment and abuse.
Communicate Individual Liability
Your supervisors and managers should be aware that they may now be held liable individually in the case of a sexual harassment claim. Therefore, you must provide them with resources to address any incident and take immediate actions to solve or escalate the problem when required.
When documenting the investigation process, you must also include actions taken by direct supervisors and managers so their participation is acknowledged individually in case of a lawsuit.
Prioritize Training
The new extended standard of liability requires that all employees and managers can identify sexual harassment and immediately respond to it. Providing training at all employee levels is the best way to increase awareness and communicate the changes to the sexual harassment laws.
You should also keep records of the materials used for training and proof of employee completion so you can use them in your favor in the event of a charge or lawsuit.
EasyLlama Has Your Back
EasyLlama provides you with the sexual harassment training material your company needs. We are a top-compliance online training platform that allows you to easily train all your organization and stay compliant with the latest state regulations.
With our self-paced, bite-sized training modules we guarantee a comprehensive approach and better understanding of all topics. Our platform allows you to track training progress and keep a record of completion, making your training responsibilities easier to handle.
Our training system beats any free sexual harassment training out there by far!
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