Sexual Harassment Claims under Texas Law

Posted on Aug 27, 2021

Governor Abbott signed two new bills (S.B. 45 and H.B. 21) that extend protections for employees alleging claims of sexual harassment under the Texas Labor Code. Both laws become effective on September 1, 2021.

These newly enacted laws extend the period during which employees and ex-employees may file a sexual harassment claim, broaden the definition of a covered “employer,” and create an ambiguous new standard for employers to meet in responding to such claims.

Statute of Limitations

Historically, employees and ex-employees who want to sue their employers for sexual harassment have been required to file a discrimination charge with the Texas Workforce Commission within 180 days after the date of the alleged unlawful conduct. House Bill 21 (which amends Section 21.201(g) of the Texas Labor Code) lengthens to 300 days the period during which a person may file such a charge. The longer limitations period applies only to sexual harassment claims based on conduct that occurs on or after September 1, 2021.  The current 180-day statute of limitations remains unchanged for discrimination claims brought by members of other protected classes (e.g., race, age, etc.).

Definition of Employer

Historically, only employers with 15 or more employees could be liable for sexual harassment under Texas law. Senate Bill 45 (codified at new Section 21.141 of the Texas Labor Code) defines an “employer” as anyone “who: (A) employs one or more employees; or (B) acts directly in the interest of an employer in relation to an employee.” Under the expanded definition, (i) all employers, regardless of the number of persons they employ, and (ii) individuals such as human resource professionals and supervisors can be held personally liable for engaging in or failing to stop sexual harassment. The new definition applies only to sexual harassment claims based on conduct that occurs on or after September 1, 2021. The definition remains unchanged for discrimination claims brought by members of other protected classes (e.g., race, age, etc.).

Employer Duty to Respond

Historically, employers have had a potential defense to claims of sexual harassment if they took “prompt remedial action” to stop the alleged harassment. New Section 21.141 provides that an employer commits an “unlawful employment practice” if “sexual harassment of an employee occurs and the employer or the 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 phrase “immediate and appropriate” is not defined and will likely be the subject of litigation until the courts clarify its meaning.

Recommended Next Steps for Texas Employers

All Texas employers should respond quickly when they receive a report of sexual harassment and take adequate remedial action to stop it.

Employers should adopt policies addressing discrimination and harassment to ensure that:

  1. Employees know to whom they can complain about sexual harassment.
  2. Complaints of sexual harassment are taken seriously and will be immediately investigated.
  3. Any necessary corrective action will promptly be taken to stop the harassment and prevent it from reoccurring.
  4. Employees will not be retaliated against for complaining about sexual harassment or participating in a subsequent investigation.

Disclaimer: This information is made available for educational purposes only, as well as to give general information and a general understanding of the law, not to provide specific legal advice.  For more information concerning this topic, please contact Sandra White or Keith Sieczkowski, employment lawyers with Branscomb Law, at swhite@branscomblaw.com or ksieczkowski@branscomlaw.com or (361) 886-3800.