New Texas Law Expands Potential Liability For Sexual Harassment

• Published date: 21 September 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Jones Day
• Author: Ms Joanne Bush, Natalia Oehninger and Brian Jorgensen

In Short

The Situation: Texas, a traditionally employer-friendly state that seldom imposes more stringent requirements on employers than federal law, recently passed a sexual harassment law that includes protections for employees and potential liabilities for employers beyond those provided by federal law.

The Result: The Texas law is more stringent than Title VII in that employers of all sizes are now subject to potential liability for sexual harassment, and managers and supervisors can be held individually liable, too. Moreover, the new law requires employers to take "immediate and appropriate corrective action" to remedy sexual harassment it knows or should have known about'a departure from Title VII's affirmative defense requiring "prompt remedial action" under the same circumstances. Finally, employees now have 300 days to file a charge of discrimination alleging sexual harassment with the Texas Workforce Commission.

Looking Ahead: Texas employers should review and, if necessary, revise their sexual harassment policies and procedures for reporting and investigating sexual harassment complaints to comply with the new law. Employers should consider emphasizing the prospect of supervisor liability in management training and prepare the organization to act "immediately" to respond to potential sexual harassment.

Texas, a traditionally employer-friendly state that seldom imposes requirements on employers that are more stringent than federal law, recently passed a new sexual harassment law that does just that. The law, which took effect on September 1, 2021, expands protections for Texas employees and potential liability for Texas employers for workplace sexual harassment. This Commentary addresses the provisions of the new law that relate to private employers but not the provisions applicable to government officials.

What the New Law Says

The new law expands the definition of "employer," for purposes of sexual harassment only, to include a person who: (i) employs one or more employees; or (ii) acts directly in the interests of an employer in relation to an employee. Tex. Lab. Code ' 21.141. This definition is broader than the definition of "employer" under Title VII in two respects. First, Title VII's prohibition against sexual harassment applies only to employers with 15 or more employees. Second, unlike under federal law, employees may now file lawsuits under Texas law against supervisors or other individuals who act "directly in the interests" of...