In a astonishing move for what has traditionally been an really employer-welcoming state, Texas Gov. Greg Abbott not too long ago signed two new costs (SB 45 and HB 21) that appreciably increase the protections for personnel who assert statements of sexual harassment less than the Texas Labor Code.  Each legislation will develop into helpful on Sept. 1.  

These new regulations contain a quantity of sizeable adjustments for businesses in Texas (related to sexual-harassment claims), such as a lengthier statute of limits, a broader definition of who qualifies as an “employer,” the prospective for particular person legal responsibility of supervisors, house owners, human methods pros, and other workforce, and a heightened regular for companies to react to inside sexual harassment issues. These alterations do not implement to promises dependent on other secured qualities below the Texas Labor Code, this kind of as race, religion, color, age, and so on.

Statute of Limits

At this time, prior to filing a lawsuit relating to an illegal employment observe under Chapter 21 of the Texas Labor Code, together with sexual harassment, an employee have to 1st file a cost of discrimination with the Texas Workforce Commission inside 180 days of the alleged unlawful work exercise.  With the enactment of HB 21 (which amends Segment 21.201(g) of the Texas Labor Code), Texas staff will now have a a lot for a longer period period of time to file their criticism alleging sexual harassment.  Less than this new regulation, for a sexual-harassment criticism centered on conduct occurring on or right after Sept. 1, workforce will be authorized to file their demand with the Texas Workforce Commission within just 300 times after the day the alleged sexual harassment transpired.  For claims primarily based on any other guarded course underneath the Texas Labor Code (e.g., race, shade, age, etcetera.), the present statute of limitations of 180 times will keep on to implement.

Expanded Employer Definition

Less than latest Texas legislation, staff members can only convey a declare of harassment or discrimination primarily based on guarded properties (including sexual harassment) against their employer, if the employer has at minimum 15 personnel.  SB 45 (codified at Segment 21.141 of the Texas Labor Code) defines an “employer” as a particular person who employs one or much more staff.  This means that, commencing September 1, 2021, efficiently all businesses in Texas could be held liable for sexual-harassment claims asserted underneath the Texas Labor Code.

Possibility of Personal Legal responsibility

An additional vital distinction from present Texas legislation is that, for functions of sexual-harassment statements only, the term “employer” also features any particular person who “functions immediately in the passions of an employer in relation to an employee.” Appropriately, following Sept. 1. supervisors, supervisors, human methods pros, other workers and 3rd get-togethers could be named individually as defendants in an employee’s sexual harassment criticism and held individually liable for damages. This improve signifies a seismic divergence from existing Texas regulation, which did not formerly provide for individual liability for any harassment or discrimination statements underneath the Texas Labor Code. 

A collateral influence of this new legislation will be its opportunity to foreclose an employer’s capability to clear away a sexual-harassment lawsuit to federal courtroom, which is frequently considered as staying a far more favorable venue for employers, in comparison to state courts. At the moment, out-of-point out businesses routinely clear away sexual harassment claims submitted in Texas state court to federal court docket, dependent on variety of citizenship grounds. If a non-varied supervisor, human means expert, or other employee (i.e., a Texas resident) is additional as a defendant to the lawsuit, the employer will no for a longer period be in a position to eliminate the case to federal court docket primarily based on the range of the events. Thus, this new Texas regulation may outcome in much fewer summary judgments on sexual harassment promises, as federal courts are additional very likely to grant summary judgment, in contrast to state courts, as a typical proposition. If this occurs, then a further collateral effect of this new regulation will likely be an maximize in the settlement benefit of these forms of statements.

Heightened Standard for Employer Reaction

The new Texas legislation also provides that an employer commits an unlawful work observe if sexual harassment of an employee happens and the employer or its agents or supervisors: “(1) know or should really have regarded that the perform constituting sexual harassment was happening and (2) are unsuccessful to just take quick and ideal corrective action.” This new common deviates from latest Texas legislation, which presents a potential protection to companies that consider “prompt remedial motion” in response to an staff complaint. However, what constitutes “quick and proper corrective action” is not outlined in the new regulation, so the exact meaning of this phrase will surely be the issue of litigation, and keep on being a disputed situation, right up until it is definitively addressed by the Texas courts.

Act Now

Whilst there will be some uncertainty about these new guidelines, which will most likely not be resolved with no judicial interpretation, there are certain steps companies really should get now to get ready for these changes. Very first, prior to Sept. 1, all employers in Texas, irrespective of size, must assessment and revise their handbook policies addressing discrimination and harassment, in purchase to make certain compliance with the new Texas sexual-harassment rules. For instance, in recognition of the heightened standards in SB 45 for sexual-harassment claims, a Texas employer’s guidelines should really obviously articulate reporting procedures for staff and deliver for an “speedy” investigation of sexual-harassment problems, and if required, “acceptable” corrective action. Second, sturdy sexual-harassment-prevention education is also advisable for all staff members. And lastly, as personal workers could most likely be named as a defendant in an employee’s sexual-harassment complaint, employers should also ensure that managerial and human means personnel are perfectly versed in the employer’s reporting and investigation treatments.

Michael Royal and Alyssa Peterson are attorneys with Littler Mendelson in Dallas. © 2021 Littler Mendelson. All rights reserved. Reposted with authorization.