What Texas Employers Need To Know About State’s New Harassment Laws

On Sept. 1, 2021, the legal landscape surrounding sexual harassment in the workplace will shift dramatically for employers in Texas. New laws (S.B. 45 and H.B. 21) effective that date will provide sexual harassment victims more options than currently exist under federal or Texas law. The new laws do not, however, provide the same options to alleged harassers.

How is Sexual Harassment Addressed Under Federal Law?

Title VII of of the Civil Rights Act of 1964 (“Title VII”) covers any employer (1) who has 15 or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year; and (2) any agent of such a person. 42 U.S.C. § 2000e(b). Federal jurisprudence has held individual managers and supervisors are not liable under Title VII. Smith v. Amedisys, Inc., 298 F.3d 434, 448 (5th Cir. 2002).

Title VII does not expressly address sexual harassment. Federal jurisprudence has nevertheless held sexual harassment is a form of sex discrimination prohibited by the Act. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). When harassment occurs, an employer may avoid liability by taking “prompt remedial action … reasonably calculated to end the harassment.” Skidmore v. Precision Printing & Packaging, Inc., 188 F.3d 606, 615 (5th Cir. 1999). Specifically, an employer is entitled to an affirmative defense if (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)

In Texas, a Title VII complaint must be filed with the Equal Employment Opportunity Commission (“EEOC”), the Texas Workforce Commission (“TWC”) or local commission within 300 days after the unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)

A court may award a prevailing Title VII claimant (1) reinstatement, (2) backpay, (3) compensatory and punitive damages (subject to statutory caps), and (4) attorney’s fees and costs. 42 U.S.C. §§ 2000e-5(g), (k); 42 U.S.C. § 1981a.

How Is Sexual Harassment Addressed Under Current Texas Law?

Currently, the Texas Labor Code covers any employer (1) “who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year”; (2) “an agent of” such employer; (3) “an individual elected to public office in this state or a political subdivision of this state”, or (4) “a county, municipality, state agency, or state instrumentality, regardless of the number of individuals employed.” Tex. Lab. Code § 21.002(8). Texas jurisprudence has held individual managers and supervisors are not liable under the Texas Labor Code. See Anderson v. Houston Community College System, 458 S.W.3d 633, 649 (Tex.App.- Houston [1st Dist.] 2015, no pet.).

The Texas Labor Code currently does not expressly address sexual harassment except as to (1) training of state employees, Tex. Lab. Code § 21.010(b); (2) unpaid interns. Tex. Lab. Code § 21.1065, and (3) charges of discrimination filed with the Texas Workforce Commission. Tex. Lab. Code § 301.156. Texas jurisprudence has nonetheless held sexual harassment is a form of sex discrimination prohibited by the Texas Labor Code. See B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2018). As under Title VII, an employer is entitled to an affirmative defense if it takes prompt remedial action to stop reported harassment. Waffle House, Inc. v. Williams, 313 S.W.3d 786, 811 (Tex. 2010).

A complaint under the Texas Labor Code must be filed with the Texas Workforce Commission (“TWC”) or local commission “not later than the 180th day after the alleged unlawful employment practice occurred.” Tex. Lab. Code § 21.202.

A court may award a prevailing claimant under the Texas Labor Code (1) reinstatement, (2) backpay, (3) compensatory and punitive damages (subject to statutory caps), and (4) attorney’s fees and costs. Tex. Lab. Code §§ 21.258, 2585, 259.

Who is Regulated By The New Texas Laws?

The new laws cover any person who “employs one or more employees.” As to claims of sexual harassment, potential respondents and defendants thus include employers who are not (1) subject to potential liability for other forms of discrimination under Texas law; or (2) covered by Title VII for any form of discrimination, including sexual harassment.

The new laws also appear to allow for personal liability for an individual who “acts directly in the interests of an employer in relation to the employee.” As to claims of sexual harassment, potential respondents and defendants include individuals who are not subject to liability for (1) other forms of discrimination under Texas law; or (2) any form of discrimination under Title VII, including sexual harassment.

What Conduct Is Governed By The New Texas Laws?

Unlike the current Texas law, the new laws contain an express prohibition of sexual harassment. Sexual harassment is defined as “an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if”:

  1. “submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either expressly or implicitly”;
  2.  “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”;
  3. “the advance, request or conduct has the purpose or effect of unreasonably interfering with an individual’s performance”; or 
  4. “the advance, request or conduct has the purpose or effect of creating an intimidating, hostile or offensive working environment.”   

These definitions largely track the definitions of “sexual harassment” under federal and Texas jurisprudence. See Ellerth, 524 U.S. at 751-52 (Title VII); Williams, 313 S.W.3d at 804.

What Is An Unlawful Employment Practice Under the New Texas Laws?

An employer commits an unlawful employment practice under the new laws if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisors:

  1. “know or should have known that conduct constituting sexual harassment was occurring”; and
  2. “fail to take immediate and appropriate corrective action.”

This standard purports to elevate the legal responsibility of employers for sexual harassment under federal law and current Texas law. First, the standard imposes liability for any harassment of which the employer should have known. Second, the term “immediate” implies greater urgency than the term “prompt” currently used in federal and Texas jurisprudence.

What Of Sexual Harassment Which Occurs Before Sept. 1, 2021?

A claim that is based on conduct that occurs before Sept. 1, 2021 is governed by current law, and current law is continued in effect for that purpose.

What Of Alleged Harassers?

Significantly, no new rights are created by the new laws for alleged harassers. Sex discrimination in employment remains unlawful under federal and Texas law, but this prohibition only applies to employers with 15 or more employees. An alleged harasser against whom an adverse action is taken by a smaller employer thus has no viable sex discrimination claim against the employer or accuser.

When Must A Sexual Harassment Complaint Be Filed With TWC Or Local Commission Under New Texas Laws?

Under the new laws, a complaint alleging sexual harassment must be filed with the TWC or local commission “not later than the 300th day after the alleged unlawful employment practice occurred.” As to sexual harassment claims, the same limitations is thus available under the Texas Labor Code as claims under Title VII.

The 180-day limitation for complaints remains for allegations of discrimination other than sexual harassment.

What Remedies Are Available For Sexual Harassment Under New Texas Laws?

The new laws do not change the remedies under the Texas Labor Code. The same remedies for sexual harassment under current law remain under the new laws.

Takeaways

Effective Sept. 1, 2021, employers who did not previously have potential liability under federal or Texas law will be viable targets for sexual harassment claimants. Even small employers must now be implementing policies, training and procedures for preventing and redressing sexual harassment in the workplace.

Even as to larger employers, sexual harassment claimants may also elect to pursue Texas claims rather than federal claims in order to name an individual manager or supervisor as a respondent or defendant. After all, divide and conquer can be a formidable litigation strategy. Even larger Texas employers must now be exploring options, such as indemnity and employment practices liability insurance, for mitigating the risks presenting by this strategy.

Finally, the new laws seemingly require an employer to be proactive, rather than reactive, as to sexual harassment. As long as the claimant shows the employer should have known of the harassment, it may not matter that he or she unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. All Texas employers must adjust their sexual harassment policies, training and procedures accordingly.

Robert G. Chadwick, Jr. frequently speaks to employers and non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.

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