How Changes to the Texas Sexual Harassment Law Affects Employers

Texas’s expansion of sexual harassment protections for employees now exposes individuals and employers, even those with only one employee, to liability for sexual harassment claims. 

Texas Sexual Harassment Law Update

The Texas legislature recently passed three new laws—H.B. 21, S.B. 45, and S.B. 282— the first two  amended the Texas Commission on Human Rights Act (TCHRA) and the third which amended Section 1, Title 5 of the Government Code. Despite the relatively immediate impact against private companies, especially employers with less than 15 employees, they are not the only ones directly impacted due to the Texas Legislature’s recent session. 

Increased Liability for Employers of All Sizes

Beginning September 1, 2021, the newly enacted laws now expose employers to heightened standards of liability for sexual harassment claims.

H.B. 21 extends the timetable for employees to file complaints with the Texas Workforce Commission to within 300 days of the alleged harassment, nearly doubling the previous 180 day window. With S.B. 45 in full effect, all Texas employers — even those with just one employee — can be held liable for sexual harassment claims. Additionally, the legislation allows for individual managers or supervisors who knew or “should have known” about sexual harassment within the workplace to be personally liable for sexual harassment. It also requires individual managers or supervisors to take “immediate and appropriate corrective action” in cases of sexual harassment.

With the addition of S.B. 282, public employers are prohibited from using public funding to settle any sexual harassment claims brought against elected officials or appointed government members or their staff. Additionally, S.B. 282 prohibits political subdivisions (a county, municipality, school district, other special district, or other subdivision of state government) from using public money to settle or otherwise pay a sexual harassment claim made against a person who is “an elected or appointed member of the governing body of the political subdivision or an officer or employee of the political subdivision.”

Legal Support for Employers

Employers of all sizes now face increased liability for sexual harassment. If you are an employer, consulting an employment lawyer can help your business be vigilant in recognizing and handling potential sexual harassment claims.

Outline of Sexual Harassment Law Updates

HB 21

• Extension of Time to File Complaint with TWC

  • “for a complaint alleging sexual harassment, within 300 days of the alleged sexual harassment.”

  • “A complaint under this subchapter alleging sexual harassment must be filed not later than the 300th day after the date the alleged sexual harassment occurred.

SB 45

• Definition of employer expanded

  • A person who:

    • Employs one or more employees; or

    • Acts directly in the interests of an employer in relation to an employee

• Sexual Harassment Amended to be Specifically Defined

  • unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:

    • submission to the advance, request, or conduct is made a term or condition of an individual's employment, either explicitly or implicitly;

    • 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;

    • the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual's work performance; or

    • the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.

• Unlawful Employment Practice (amended to include employer’s agents and supervisors)

• An employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or the employer's agents or supervisors:

  • know or should have known that the conduct constituting sexual harassment was occurring; and

  • fail to take immediate and appropriate corrective action.

SB 282

• Prohibition of money to settle or pay sexual harassment claims

  • The legislature may not appropriate money and a state agency may not use appropriated money to settle or otherwise pay a sexual harassment claim made against a person who:

    • elected member of the executive, legislative, or judicial branch of state government;

    • is appointed by the governor to serve as a member of a department, commission, board, or other public office within the executive, legislative, or judicial branch of state government; or

    • serves as staff for a person described.

• Prohibition on use of public money to settle or pay sexual harassment claims

  • "political subdivision" means a county, municipality, school district, other special district, or other subdivision of state government.

  • A political subdivision may not use public money to settle or otherwise pay a sexual harassment claim made against a person who is:

    • an elected or appointed member of the governing body of the political subdivision; or

    • an officer or employee of the political subdivision.

• Expansion of open-enrollment charter school under the Education Code

  • Originally, open-enrollment charter schools were not considered political subdivisions under the Labor Code.

  • Now, open-enrollment charter schools are considered political subdivisions.