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New Texas Laws Expand Sexual Harassment Liability for Employers and Individuals

September 02, 2021

Texas has expanded sexual harassment protections for employees in the workplace beyond those offered under federal law. As of September 1, 2021, individuals and all employers (including those with only one employee) may now face liability for sexual harassment claims in the Lone Star State.

Two new laws—H.B. 21 and S.B. 45—amend the Texas Commission on Human Rights Act (TCHRA) to impose express liability for sexual harassment claims and permit employees to file their claims within 300 days of the alleged harassment, nearly double the limitations period on most TCHRA claims. The Texas Legislature, through S.B. 282, also prohibited the appropriation or use of public funds to settle or pay sexual harassment claims against public officials or employees.

The sweeping new laws aim to capture nearly all employers and their agents. The statute defines “employer,” for purposes of sexual harassment claims, as a person who “employs one or more employees” or “acts directly in the interests of an employer in relation to an employee.” This means individuals, such as managers, supervisors, and coworkers, may also be liable under the new laws.

Under these amendments, an employer may be held be liable if sexual harassment occurs and it or its agents “know or should have known that the conduct constituting harassment was occurring” and “fail to take immediate and appropriate corrective actions.” The law notably does not define what corrective actions are “appropriate” or what an employer must do to qualify as taking “immediate” action versus “prompt” action under the prior standard.

The law does, however, specifically outline what conduct constitutes sexual harassment. Any “unwelcome sexual advance, request for a sexual favor, or any other verbal or physical conduct of a sexual nature” might give rise to liability if

  • submission to the conduct is made a term or condition of employment;
  • the employee is disciplined for submission to or rejection of the conduct;
  • the conduct unreasonably interferes with the employee’s work performance; or
  • the conduct creates a hostile working environment.

We expect these laws to give way to more sexual harassment claims filed in state court as a result of the potential individual liability imposed. That is, because employees are now permitted to individually name their alleged sexual harassers when filing TCHRA claims, these supervisors have a greater likelihood of defeating diversity jurisdiction, thereby thwarting an employer’s ability to remove the lawsuit to federal court on this ground.

The new Texas laws only apply to conduct alleged to have occurred on September 1, 2021, or later and not to any past acts. Thus, Texas employers would be well advised to revisit and update their employee handbooks and sexual harassment policies. Employers should also consider additional training on reporting sexual harassment and reevaluate their corrective action plans.

CONTACTS

If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Dallas
Robert E. Sheeder
Lauren A. West

Houston
Ethel J. Johnson
Michael P. Jones
Stefanie Moll
T. Cullen Wallace