Effective September 1, 2021, Texas employees who work for businesses with fewer than 15 employees have remedies under the Section 21.141 to the Texas Labor Code for sexual harassment. And sometimes, these small businesses can be the most dangerous for workers, particularly regarding employee rights. Contrary to common understanding, there were no remedies for sexual harassment of employees in the Texas Labor Code before September 1. Imagine that you work in a two-person office, just you and the boss. The boss begins to act in inappropriate and unwelcome ways – lewd comments, unwanted touching, asking you out on a date, even suggesting that you could get a raise that way — or that you could get fired otherwise. This harassing activity can escalate. But there are no witnesses, no potential allies and certainly no HR Department. Under prior law, your only realistic choice might be to find another job.

For conduct on and after September 1, 2021, however, you may have another choice – to make a claim under the Texas Labor Code for sexual harassment or discrimination. In combination with two other recent changes to Texas law, SB 45 (as this new law is also known) considerably expands the protections that Texas employees have against sexual harassment.

If You Have Experienced Sexual Harassment, Our Texas Employment Lawyers Can Help

If you find yourself in this uncomfortable and potentially dangerous situation, reach out to our experienced Texas employment lawyers by clicking on this link and sending us your contacts information Contact Kilgore & Kilgore. We offer a free Initial consultation to help you explore your options. Click this link if you would like to know more about our employment law practice.

Legal Definition of Sexual Harassment

It has been said many times before, but it bears repeating. Sexual harassment does not happen just to women. The law protects men, women, and our LGBTQ brothers and sisters. It even applies in cases of mistaken perceptions about sexual orientation. In addition, not all sexual conduct is harassment. The key concepts for a legal sexual harassment definition include unwelcome, unwanted, or conduct that creates a hostile atmosphere in the workplace.

Under the new statute, 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 any one of the following four things is also true:

• Submission to the advance, request, or conduct is made a condition of an individual’s employment, either explicitly or implicitly; or
• Submission to or rejection of any of these behaviors is used as the basis for a decision affecting the individual’s employment; or
• Any of these behaviors has the purpose or effect of unreasonably interfering with an individual’s work performance; or
• The behavior has the purpose or effect of creating an intimidating, hostile, or offensive working environment.

That fourth element applies even to employees who are not the target of the harassment. Suppose that the boss harasses an employee, Bob, because she thinks Bob is gay. She leaves Mary, the other employee alone, but Mary is very upset by what is happening to her friend Bob. Mary may also have claim for sexual harassment — in addition to Bob’s claim.

The New SB 45 Holds Contractors, Supervisors, Managers, and HR Personnel Also Responsible for Sexual Harassment, Going Farther Than Federal Law

In addition to expanding the reach of the Texas Labor Code’s prohibition of sexual harassment to employers of any size, SB 45 also expands the definition of employer. In this context, the term also includes “a person who acts directly in the interests of an employer in relation to an employee.” Thus, it may cover the kind of behavior described above if it is done by an outside contractor or a fellow employee. The contractor or colleague may be individually liable for sexual harassment.

In addition, after September 1, supervisors, managers, HR professionals, other employees and third parties may be named individually as defendants in an employee’s sexual harassment complaint and held personally liable for damages. This change may also limit an out-of-state employers’ ability to remove sexual harassment claims under Texas law to federal court in cases where an in-state manager or supervisor is also sued. This is significant because the lower employee-threshold for Texas law is now stricter than that of federal law.

To avoid liability, an employer or person acting in the interest of an employer may be liable if he or she knew or reasonably should have known of the harassing behavior and did not take “immediate and appropriate corrective action.” The previous standard called for “prompt” action, which was presumably not as fast.

Two More Changes to the New Texas Sexual Harassment Law

Two additional changes to Texas law may also be important for employees. HB 21, which also went into effect on September 1, 2021, lengthens the time within which sexual harassment claims may be brought. For a sexual harassment complaint based on conduct occurring on or after September 1, employees will be allowed to file their charge with the Texas Workforce Commission within 300 days after the date the alleged sexual harassment occurred. This is almost twice the 180-day time limit previously in effect. But bear in mind that it is still extremely short. It is very important to act promptly.

Secondly, and of perhaps more limited consequence, SB 282 amends Texas law by prohibiting the Texas legislature from appropriating money and state agencies from using appropriated money to settle or otherwise pay a sexual harassment claim against an elected or appointed member of the executive, legislative, or judicial branch of state government. This includes school districts, open-enrollment charter schools, counties, municipalities, special districts, and other subdivisions of the state.

This is indirectly important to employees because it increases the incentive for these employers to police compliance with sexual harassment laws. It may also lessen any potential political sentiment against sexual harassment settlements as being paid from taxpayer money.

If You Have Experienced Sexual Harassment at Work, Our Employment Lawyers May be Able to Help

What should you do if you have been the target of workplace sexual harassment? First, make detailed notes about the conduct – time, place, date, who else was there, and who knows about it. Keep this record at home. Second, act promptly. Even under the new provisions of the law, you do not have much time. And finally, get in touch with an experienced employment lawyer. Reach out to Kilgore & Kilgore by filling out a form and sending it to us for a free initial consultation. Click here to get the conversation started contact Kilgore & Kilgore.