Texas SB 45 & HB 21 were signed into law in May and June this year by Governor Abbott, each effective September 1, 2021. This legislation broadly redefines sexual harassment in the workplace by expanding employee protection, broadening employer liability and extending filing deadlines. The legislation is a significant shift from previous laws governing sexual harassment claims, and employers should be sure to familiarize themselves with the new laws and enact policies which ensure their compliance.
SB 45 amends Chapter 21 of the Texas Labor Code by broadening the definition of “employer”. The law as currently written excludes employers with fewer than 15 employees; under the new law, effective September 1, 2021, employees may bring a claim of sexual harassment against any person who employs one or more employees (read: all Texas employers). SB 45 further broadens the class of liable parties beyond the employer alone – under the new law, claims are also permissible against other employees who “[act] directly in the interest of an employer in relation to an employee.” The law states: “(a)n employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer’s agents or supervisor [emphasis added]” does not take immediate action. SB 45 does away with the nebulous definition of an employer and imposes individual liability for harassment claims on managers, supervisors and co-workers. A secondary effect of the inclusion of these (presumably resident) parties is the potential preclusion of employer removal of state court claims to federal court on the basis of diversity jurisdiction. SB 45’s requirement that an employer take “immediate” corrective action further expands an employer’s duty to respond to a claim of sexual harassment. The law’s current language only requires “prompt remedial action” by an employer. “Immediate action” has not been explicitly defined by the legislature, but SB 45 clearly requires more from an employer than the response required under the present law.
HB 21 extends the deadline for timely filing a sexual harassment complaint with the Texas Workforce Commission from 180 to 300 days. The bill’s history indicates lawmakers’ concern that the 180-day filing deadline failed to account for inaction due to the fear of retribution faced by many victims of sexual harassment. The legislation applies only to discrimination complaints dealing with sexual harassment; all other discrimination complaints remain subject to the 180-day limitation period.
This legislation is not retroactive; it applies only to claims made on or after September 1, 2021. Prior to that date, Texas employers should review their workplace discrimination and harassment policies to educate employees and implement procedures which adhere to SB 45’s heightened standards. Kuiper Law Firm will continue to monitor and provide updates regarding additional legislation and developing caselaw.
Kuiper Law Firm, PLLC understands the importance of effective workplace policies and procedures; if you have any questions about how the information in this article may apply to you or your business, do not hesitate to contact us.
