Effective September 1, 2021, employers in Texas are subject to two significant amendments to the state employment law: SB 45 and HB 21 to the Texas Labor Code expand sexual harassment protections for employees in essentially all workplaces.
More Employers Can Now Expect to Receive Legal Challenges
Previously, only employers with 15 or more employees were subject to the federal or state fair employment laws addressing sexual harassment. SB 45 extends coverage of the state laws to employers with one or more employees. In order to mitigate risk, small employers will want to quickly create and communicate policies prohibiting harassment in the workplace, train supervisors and establish procedures for reporting, investigating and resolving internal complaints.
Individuals Can Now Be Charged
Per SB 45, as of September 1, not only can employers be charged for violating the state’s prohibition on sexual harassment, but individual managers and supervisors can be charged as well. If the individual knew or should have known that harassment was occurring and failed to take immediate and appropriate corrective action, the individual manager and/or supervisor can be individually named and charged with harassment. Employers will want to verify that their employment liability insurance or other coverage will cover the claims of individuals in the event the employer desires to provide legal services to the individual. However, when the interest of the employer and the individual differ, the employer will likely deny assistance. Accordingly, individual supervisors and managers may want to consider personal insurance coverage for this type of claim. Training is critical to protect managers and supervisors – they need to know how to spot harassment and what to do with that information.
Complainants Can Wait Longer to File
HB 21 extends the time within which an employee can file a sexual harassment claim with the Texas Workforce Commission to from 180 to 300 days. While employees of larger employers have always had 300 days to file a federal claim, the extension of the filing period when combined with the application to small employers means that small employers must be very careful about documenting performance and conduct concerns. In addition, such documentation should be retained so that evidence is available for defense should they be charged.
One good piece of news for small employers: the new law does not extend the filing period for state claims based on race, color, religion or disability.
If you need assistance drafting policies or training staff, please contact:
- Robin Sheridan, rsheridan@wp.hallrender.com or at 414-721-0469; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
