Texas expands protections against sexual harassment for Polsinelli employees

Texas Gov. Greg Abbott recently signed two new bills, beginning Sept. 1, 2021, that will equip employees with new tools and protections to enforce sexual harassment in the workplace. Here’s what Texas business owners need to know:

The definition of “entrepreneur” has been expanded. Currently, an employer must have 15 or more employees to be covered by the Texas Labor Code’s anti-sexual harassment laws. Effective September 1, Senate Bill 45 (Laboratory Code § 21.141) will define an “employer” as a person who (1) has “one or more employees”. and (2) “acts directly in the interest of an employer in relation to an employee.” First, the new definition means this all employers, including those that only have one employee, could be held liable for damages arising from sexual harassment claims. Second, supervisors, managers, and co-workers can also be named defendants in sexual harassment lawsuits and be personally liable for damages. This is an important change, as it creates the potential for individual liability against the alleged harasser (which previously only arose in the work context when there was a claim for assault on common law). As a result, there are now far more Texas employees who can sue for sexual harassment without attending than before, in a state court, and it will be more difficult to take cases to a federal court. It is also conceivable that the plaintiff’s bar will try to argue that independent contractors, vendors, customers and other third parties may qualify as “entrepreneurs” under this new statute. This underscores the importance of the employer not only reviewing its own internal policies and procedures, but also its supplier and service agreements with contractual partners.

The definition of “sexual harassment” is more detailed. The new law provides a clear and detailed description of prohibited behavior. Specifically, sexual harassment is defined as “unwanted sexual advancement, a request for sexual favor, or any other verbal or physical conduct of a sexual nature if: (a) submission to the advance, solicitation, or conduct becomes a term or condition of a person’s employment, either explicitly or implicitly; as a basis for a decision affecting the employment of the person, (c) the advance, application or conduct has the purpose or effect of irrationally interfering with a person’s employment performance; d) the advance, request or conduct has the purpose or effect of creating an intimidating, hostile or offensive work environment. “This definition gives employers more guidance in analyzing employee behavior and investigate complaints.

Employers must act quickly after receiving a report of sexual harassment. Employers should always take sexual harassment complaints seriously and investigate allegations immediately. However, in light of the recent #MeToo movement and the influx of sexual harassment claims, Senate Bill 45 (Laboratory Code § 21.142) appears to be stepping up pressure on employers to seek employee activity and act promptly after receiving a sexual harassment complaint document. The new law specifically states that illegal work practice occurs if an employee is subjected to sexual harassment and “employees or agents or supervisors of the employer (1) know or should have known that it was occurring. the constitutive conduct of sexual harassment; and (2) do not take immediate and appropriate corrective action. ”While immediate and appropriate corrective action is not defined, making it difficult to predict how courts will interpret and apply the new language, employers should avoid delays in resolving concerns and complaints.Employers often rely on the Faragher-Ellerth affirmative defense to defend their actions by establishing that the company took reasonable care to avoid harassing conduct and promote corrective action when complaints were filed about a supervisor in federal court. This new Texas law seems to codify the expectations of employers and their agents in the workplace.

Employees have more time to file allegations of sexual harassment discrimination. Historically, Texas employees who believe they have been subjected to illegal work practices (e.g., discrimination on the basis of race, nationality, color, age, etc. or retaliation) have 180 days from the date of the alleged event to file a charge. of discrimination in the Texas Workforce Commission. House bill 21 (laboratory code of § § 21.201 (g)) extends this time to 300 days.

The change in Texas is consistent with the broader national change to expand protection against sexual harassment. In short, the speed and accuracy of investigations, as well as effective corrective measures, are more important than ever. Employers should also review their employees ’manuals, policies, and procedures to ensure that the language adequately reflects new laws. Polsinelli’s attorneys will continue to monitor developments related to these amendments and provide updates.