Complete Planetary Alignment. Halley’s Comet. A Full Photo voltaic Eclipse. Texas Enacting Heightened Worker Protections Past Federal Regulation.

What are “issues that not often occur in your lifetime?”

In Texas, the overall rule is that employee-facing authorized protections overlap with—and lengthen no additional than—its federal counterparts. However newly-enacted state laws regarding office sexual harassment has bucked that development.

On September 1, 2021 new legal guidelines took impact that may broaden worker rights, in addition to employer and particular person legal responsibility, for claims of sexual harassment within the office. Particularly, S.B. 45 (codified as Part 21.141 of the Texas Labor Code) made three key revisions to preexisting state regulation regarding sexual harassment.

First, the brand new regulation revised the that means of a qualifying “employer.” Beneath the previous statute, legal responsibility for office sexual harassment utilized solely to employers having 15 or extra staff for a minimum of 20 weeks within the previous calendar 12 months. However the up to date statute now covers employers having solely a number of staff. To that finish, nearly all Texas employers are inside the statute’s attain.[1]

Second, S.B. 45 expands legal responsibility to people who act “immediately within the curiosity of an employer in relation to an worker.” The upshot of this revision is that particular person individuals performing as supervisors, managers, homeowners, brokers, contractors, or (probably) non-supervisory staff may discover themselves personally liable beneath the brand new state statute. Consequently, for primarily the primary time in Texas’s historical past, people could discover themselves as named defendants in office sexual harassment litigation.

Third, the revised statute additionally will increase the responsibility of employers to research and treatment claims of sexual harassment. Beforehand—and analogous to federal regulation—Texas employers may convey an affirmative protection to legal responsibility in the event that they took “immediate remedial motion” in response to a sexual harassment grievance.[2] However the statute’s revised language seems to intensify that commonplace. Particularly, S.B. 45 states, partly, that an employer acts unlawfully:

[I]f sexual harassment of an worker happens and the employer or the employer’s brokers or supervisor (1) know or ought to have identified that the conduct constituting sexual harassment was occurring; and (2) fail to take instant and applicable corrective motion.

Whereas the brand new language has not been examined, plaintiffs’ attorneys will little question argue that the phrase “instant and applicable” creates additional temporal urgency on a defendant employer to behave, with a view to efficiently invoke the protection.

Lastly, however importantly, accompanying laws additionally expanded the constraints interval through which staff could file a declare. Particularly, H.B. 21 lengthens the statutory interval for workers to file a sexual harassment declare to 300 days from the date of the alleged harassment. Beforehand, staff have been required to file a harassment/discrimination cost with the Texas Workforce Fee (“TWC”) inside 180 days from the occasion(s). Successfully, this transformation brings the submitting interval for state claims consistent with its federal counterpart of 300 days.[3]

All the above-referenced adjustments apply solely to claims primarily based on conduct that happens on or after September 1, 2021.

Three Key Takeaways for Employers:

  1. Know your publicity. As of September 1, 2021, primarily each enterprise or employer in Texas falls inside the ambit of the brand new harassment statute. You probably have one worker, you’re a potential defendant.
  2. Act accordingly. Associated to level “1”, employers who beforehand missed harassment insurance policies, procedures, and coaching should act shortly to implement crucial procedures. Exterior counsel can play an important position on this course of. Crafting efficient handbooks, holding trainings, implementing insurance policies, and conducting thorough investigations could permit employers to keep away from claims or in any other case assert defenses to legal responsibility.
  3. Alert supervisory staff. Supervisors, managers, and staff (whether or not or not in positions of authority) may face particular person legal responsibility beneath the revised statute. To that finish, and accompanying level “2”, employers ought to guarantee their personnel perceive they might be discovered personally answerable for partaking in office sexual harassment—or failing to report the identical.

Texas employers who’ve questions or want help navigating this new authorized panorama ought to contact Sheppard Mullin. Our Texas employment regulation specialists are right here to supply steerage and help with every little thing from coverage drafting, coaching and implementation, to protection of litigation.


[1] To be clear, these modifications apply solely to sexual harassment claims—not different types of statutorily-prohibited discrimination.

[2] Generally known as a Faragher-Ellerth Protection, after two 1998 United States Supreme Court docket selections. Faragher v. Metropolis of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2nd 662 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2nd 633 (1998).

[3] Once more, this expanded limitations interval applies solely to expenses of sexual harassment.