Image depicts an example of sexual harassment in the workplace

Sexual Harassment at Work? Texas Expanded Your Protections

Are you enduring sexual harassment and don’t know what to do? Be encouraged. Texas just enacted a new law expanding the rights of employees in the area of sexual harassment.

At Gardner Employment Law, we have litigated sexual harassment cases.  We won the largest punitive damages award in the State of Missouri for one of our clients. So if you need support and clear guidance based on all the new legislation, contact us.

Which New Texas Laws Involve Sexual Harassment?

Of the new 666 laws enacted by our last Legislature, House Bill 21 and Senate Bill 45 expand the protections of Texas employees.  Even though other bills received more attention, these laws directly affect the workplace environment – for the better.  Effective September 1, 2021, Section 21.141 will be added to the Texas Labor Code governing sexual harassment claims in Texas.

As we explain in “Sexual Harassment Lawyer,” sexual harassment is a subpart of sexual discrimination law.  Note that the expansions in the new statute apply to only sexual harassment.  To make a legal claim, workplace harassment must be directed at an employee’s protected class. The other statutory protected classes are race, religion, national origin, disability, and age. If you are experiencing workplace harassment based on one of those attributes, the old Texas Labor Code provisions still apply.

What Do the New Bills Mean?

The new bills expand workplace sexual harassment liability in three primary ways. The new laws:

  1. Expand the scope of who is liable for sexual harassment
  2. Clarify what measures must be taken by the employer
  3. Increase the time that employees have to report sexual harassment

Section 21.141, based on Senate Bill 45 and House Bill 21, expands the definition of employer in the context of sexual harassment claims.  Previously only employers with 15 or more employees came within the meaning of “employer.” This statute defines “employer” as anyone who employs “one or more employees” or “acts directly in the interests of an employer in relation to an employee.”  Now small businesses are governed by this statute.

Even managers or supervisors who engage in unlawful behavior may be sued and be on the hook for damages caused. The new law provides that 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. This is a major departure from earlier law. Never could the harassing manager be sued individually.  Many of my clients had difficulty understanding that restriction, that they could not sue the manager who sexually harassed them. The employee could file suit only against the company. Now the statute opens individual liability.

The law lengthens the deadline for filing a sexual harassment claim. Previously, an employee only had 180 days from the date of the alleged sexual harassment incident to file a claim with either the EEOC or the Civil Rights Division of the Texas Workforce Commission. Now, an employee has 300 days to file a claim. This is a strict number of days.  If you miss the filing deadline, you are out of luck.  Your claim will be barred.

What is Sexual Harassment in the Workplace?

While the general definition of “sexual harassment” remains the same, the new law appears to codify existing Texas and Federal law.  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:

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

As we discuss in “Sexual Harassment Lawyer,” the claim of sexual harassment must be based on “objectively and subjectively offensive” sexual advances. This means that not only the recipient finds the sexual advances offensive, but that a reasonable person in the same situation would view them as offensive. In addition, the offensive conduct must be either “severe or pervasive.”

Note the important word “or” – severe or pervasive. Severe conduct, such as rape, obviously would constitute sexual harassment. But sexual harassment is not limited to rape. Sexual harassment, as defined by the Texas Workforce Commission, includes any “unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.” Even if the conduct was not rape or or bad as rape, do not let that prevent you from taking action.

This is where “pervasive” comes in. If the conduct involves offensive, unwelcome conduct that occurs multiple times, it could qualify as “pervasive.” That means that the offensive conduct continues repeatedly, over a period of time, and is so bad that it “pervades” the workplace, making your entire environment at work hostile, intimidating, or offensive. In fact, under the new law, the offensive conduct must have the purpose or effect of unreasonably interfering with your work performance.

In addition to the circumstances that directly relate to the incident, the law requires investigators to look at the indirect implications as well.  Some court opinions mention the “totality of the circumstances.”   Was the conduct an explicit or implicit condition of your employment? In other words, was your condoning the sexual activity a condition, for example, for remaining employed or receiving a raise? Was the rejection of sexual advances the basis for the harassing manager’s decisions about your employment? Did the conduct unreasonably affect your work performance? Did the conduct create a hostile or intimidating work environment? If you answered “yes” to any of these questions, you may have a valid claim.

How Do These New Laws Expand Liability?

In addition to expanding who can be liable under the law and when to file a claim, the new law details what could cause an employer or supervisor to be liable for sexual harassment. The new language in Section 21.141 indicates that even negligence by the employer could be enough.  The new statute states that to be liable, the employer must:

  1.  Know or should have known that the conduct constituting sexual harassment was occurring; and
  2.  Fail to take immediate and appropriate corrective action

“Should have known” is the classic wording from the law of negligence.  It can be argued that a manager cannot put his or her head in the sand and claim that he or she didn’t know what was going on if there are facts to put the manager on notice of the harassment.

By using the work “immediate,” the new law appears to step up the urgency for action by the employer.  Previously, the employer was shielded by a defense, known as the Faragher-Ellerth defense, which came from two United States Supreme Court opinions.  Based on those opinions, an employer could not be held liable unless (1) the employee followed the company policy manual, if one exists, to contact the manager listed (usually Human Resources) and report the offensive conduct. Then (2) the employer reasonably tried to promptly correct the harassing behavior.  This means that if the company has a harassment policy that requires an employee to report harassment to HR or to management, if you fail to make that report, the company is not responsible.

Based on the employee’s report, the employer would investigate, after which it was required to take “prompt remedial action” to stop the harassment.  Now, the employer must take “immediate and appropriate” corrective action.  The word “immediate” appears to create a higher standard.

The employee’s reporting requirement is not mentioned in the new law. It makes good sense, however, for an employee to report intimidating, hostile, or offensive behavior which is so bad that it interferes with the employee’s work performance.

Ultimately, it is in the best interest of managers, supervisors, and high-level executives to ensure a safe and harassment-free work environment.  Employees are more productive, and, thus, the company is more profitable. This new law reflects that standard.

What Solutions Are Available?

With these new standards for sexual harassment claims in the workplace, you may be able to seek legal action that you could not before.  Plus, with the expansion of time in the statute, you have more time to file your claim. In these cases, the details matter. The statute requires 300 days, not 301 days.

As we mention in “How to Stop Being Harassed at Work,” you must make it clear to your harasser through your words and actions “that you do not like the conduct and that you want it to end.” Then, you should still follow the company’s stated policy and report any sexual harassment problems to the person stated in your employee handbook.  If there is no policy or no manager identified to whom you can report, go to a manager you trust.  In any event, report the problem.  Put the employer on notice.  Then the burden shifts to the employer to take “immediate and appropriate corrective” action.

Contact a Legal Expert

If you find yourself wondering what all this means or if you believe you have a valid claim for sexual harassment, it helps to have a legal expert on your side. You might find this process overwhelming or even encounter people who do not believe you or discount your experiences.

At Gardner Employment Law, we understand those obstacles. If you need clear guidance and support, give us a call.

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