New Texas Law Expands Employee Rights And Employer Liability For Sexual Harassment Claims

• Published date: 03 September 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Mr Jonathan E Clark, Stephen E Fox and Dan Syed

Total Planetary Alignment. Halley's Comet. A Full Solar Eclipse. Texas Enacting Heightened Employee Protections Beyond Federal Law.

What are "things that rarely happen in your lifetime?"

In Texas, the general rule is that employee-facing legal protections overlap with-and extend no further than-its federal counterparts. But newly-enacted state legislation concerning workplace sexual harassment has bucked that trend.

On September 1, 2021 new laws took effect that will expand employee rights, as well as employer and individual liability, for claims of sexual harassment in the workplace. Specifically, S.B. 45 (codified as Section 21.141 of the Texas Labor Code) made three key revisions to preexisting state law concerning sexual harassment.

First, the new law revised the meaning of a qualifying "employer." Under the old statute, liability for workplace sexual harassment applied only to employers having 15 or more employees for at least 20 weeks in the preceding calendar year. But the updated statute now covers employers having only one or more employees. To that end, virtually all Texas employers are within the statute's reach.¹

Second, S.B. 45 expands liability to individuals who act "directly in the interest of an employer in relation to an employee." The upshot of this revision is that individual persons acting as supervisors, managers, owners, agents, contractors, or (potentially) non-supervisory employees could find themselves personally liable under the new state statute. Consequently, for essentially the first time in Texas's history, individuals may find themselves as named defendants in workplace sexual harassment litigation.

Third, the revised statute also increases the duty of employers to investigate and remedy claims of sexual harassment. Previously-and analogous to federal law-Texas employers could bring an affirmative defense to liability if they took "prompt remedial action" in response to a sexual harassment complaint.² But the statute's revised language appears to heighten that standard. Specifically, S.B. 45 states, in part, that an employer acts unlawfully:

[I]f sexual harassment of an employee occurs and the employer or the employer's agents or supervisor (1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.

While the new language has not been tested, plaintiffs' lawyers will no doubt argue that the phrase "immediate and appropriate"...