Effective September 1, 2021, laws pertaining to sexual harassment in Texas will be significantly expanded and redefined. This article highlights Senate Bill 45, which expands the definitions of an employer and sexual harassment and imposes a requirement on employers to take immediate and appropriate action when a sexual harassment claim is made; House Bill 21, which extends the deadline for filing a charge of sexual harassment; and Senate Bill 282, which bans settling sexual harassment claims with public funds.
SB 45: Expanded Protections to Small Business Employees
Currently, under state and federal law, an employee can only bring a sexual harassment claim against his or her employer if the employer has 15 or more employees. Effective September 1, Section 21.141 will be added to the Texas Labor Code expanding liability to all employers under Texas law, regardless of the number of people employed.
SB 45 defines an “employer” as “a person who: (A) employs one or more employees; or (B) acts directly in the interests of an employer in relation to an employee.” This change will effectively allow a charge of discrimination to be brought against any business with an employee, regardless of size. This change significantly broadens current liability for employers and will mostly affect small businesses.
In addition to expanding liability to all Texas employers, SB 45 also opens the door to individual liability. The expansion of the definition of an employer to those who “act directly in the interests of an employer in relation to an employee” means any person determined to have acted in the interest of an employer—regardless of whether that individual is an agent of the company—could be held liable for sexual harassment. This may include owners, directors, officers, managers, non-managerial employees, and potentially even contractors or vendors.
SB 45 also includes a requirement that employers take action when a sexual harassment complaint is lodged. Where current law allows employers a defense for “prompt, remedial action” taken following a sexual harassment complaint, § 21.141 provides an “unlawful employment practice” occurs if there is sexual harassment of an employee and “the employer or employer’s 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.” The meaning of “immediate and appropriate corrective action” is not defined by SB 45, however, the language is more stringent than the current defense of “prompt, remedial action.” What defines “immediate and appropriate corrective action” will undoubtedly be highly litigated by both sides of the bar.
Finally, § 21.141 amends the Texas Labor Code to add a detailed definition of “sexual harassment.” This amendment essentially codifies current state and federal case law definitions of sexual harassment. The amended language reads:
“Sexual harassment” means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:
- submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either explicitly or implicitly;
- submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual’s employment;
- the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance; or
- the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.
HB 21: Extended Deadline for Filing a Sexual Harassment Charge
HB 21 amends Section 21.201(g) of the Texas Labor Code to increase the charge filing period with the Texas Workforce Commission from 180 days to 300 days from the date of the alleged sexual harassment. Notably, the expanded time period only applies to claims of sexual harassment; it does not apply to other forms of discrimination, namely discrimination based on sex (not constituting sexual harassment), race, color, disability, national origin, or religion.
SB 282: Banned Settlements Using Public Funds
SB 282 bans a business from settling sexual harassment claims with public funds. Current law contains no prohibition on the use of appropriated funds to pay for sexual harassment claims by elected and/or appointed officials. SB 282 amends the Texas Government Code by adding Section 576.001, which prohibits the Texas legislature from appropriating money and state agencies from using appropriated money to settle or otherwise pay a sexual harassment claim against an elected or appointed member of the executive, legislative, or judicial branch of state government. For purposes of this law, school districts, open-enrollment charter schools, counties, municipalities, other special districts, and other subdivisions of the state are considered political subdivisions.
Texas has an estimated 2.8 million small businesses which comprise 99.8% of Texas businesses and which employ 4.7 million employees. With SB 45 comes new, never-seen-before responsibilities for small businesses in Texas. This new law will not only reach more businesses, most especially smaller ones, but the new definition means every business in the state of Texas – regardless of size – must have a clear understanding of these laws. It is critical for all businesses, especially smaller ones, to have policies and manuals in place which apply to sexual harassment, as well as training for all employees on discrimination and sexual harassment.
Additionally, these drastic changes occurring to sexual harassment laws in Texas in September 2021 will no doubt lead to an avalanche of litigation, again, most especially against smaller businesses. The decisions of the courts on these new changes must be monitored closely in order for employers to understand an ever-changing legal environment which may change on a day-to-day basis.
For questions on how the new sexual harassment laws affect you and your business, please contact Michelle Miller at 713.752.4460 or firstname.lastname@example.org, or any member of the Jackson Walker Labor & Employment team.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For additional assistance related to DEI policies, please contact an attorney in Jackson Walker’s Diversity & Inclusion Counseling practice.
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