New Texas Sexual Harassment Law Creates More Obligations For Employers

With so much media attention on “me too” sexual harassment claims, it may not be surprising that the Texas legislature passed legislation to give greater protections to employees. Effective September 1, 2021, Texas adopted legislation to expand sexual harassment protections for Texas employees. The law does not address other forms of discrimination nor does it apply to sexual harassment that occurred before September 1st, which are covered by federal and state laws in existence prior to September 1, 2021. [1] S.B. No. 45 amends Chapter 21 of the Texas Commission on Human Rights Act (“TCHRA”) to include Texas Labor Code Section 21.141, et seq. (Subchapter C-1 – Sexual Harassment). The new law expands the definition of employer to include those with one or more employees. Prior to the amendments to Chapter 21, only employers with 15 or more employees were subject to laws against sexual harassment under federal law (Title VII of the Civil Rights Act of 1964), and Texas law (Texas Commission on Human Rights Act or TCHRA). The law extends coverage to employees such as domestic workers and housekeepers. 

Section 21.141 also expands the definition of employer to include anyone who “acts directly in the interests of an employer in relation to an employee”, creating individual liability for supervisors and managers. Sexual harassment is defined as “an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct a sexual nature if”:

1. Submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either explicitly or implicitly;
2. 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;
3. The advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance; or
4. The advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.  

Tex. Lab. Code §21.141. An employer commits an “Unlawful Employment Practice” if sexual harassment occurs and the employer or the employer’s agents or supervisors:

1. Know or should have known that the conduct constituting sexual harassment was occurring; and
2. Fail to take immediate and appropriate corrective action.

Tex. Lab. Code §21.142. Complaints may be filed with the Texas Workforce Commission (“TWC”), the agency responsible for accepting and evaluating complaints, within 300 days of the occurrence of sexual harassment. Tex. Lab. Code §21.202. The amendment to Chapter 21 enlarged the original 180-day limitations period that apply under other sections of Chapter 21 of the Texas Labor Code that apply to other forms of discrimination and harassment. Thus, the 300 days to file a claim applies to sexual harassment claims only.  

Additional guidance from the TWC states that:

• Sexual harassment can occur whether the harasser is female or male, and can occur between members of the same sex.
• The harasser may be a supervisor, agent of the employer, a co-worker or non-employee (for example, a customer of the employer).
• You need not be the person harassed to be affected by the offensive conduct.
• Sexual harassment may occur without the existence of economic injury or termination as long as unwelcome conduct causes a change to conditions of employment.

See www.twc.gov (Sexual Harassment portion of Sex Discrimination overview).

Discrimination Generally and Sexual Harassment Basics.

Discrimination Not Included. The new Texas law does not address other forms of discrimination, and instead focuses exclusively on preventing sexual harassment in the workplace. Neither Title VII nor the TCHRA specifically mention sexual harassment.  Instead, the prohibition against discrimination based on sex has been interpreted to include sexual harassment. Sexual harassment has been recognized as one form of prohibited employment discrimination based on sex. B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276 (Tex. 2018); Hoffman-La Roche Inc. v Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). The TCHRA is based on federal Title VII law, and therefore, federal cases are relied upon as authority in Texas court decisions, including the interpretation of sexual harassment. Id. at 445-446.  

Types of Sexual Harassment. Sexual harassment claims have two types: (1) “quid pro quo” harassment, in which employment benefits or punishments are tied to a request for sexual favors; and (2) “hostile workplace” harassment that arises from a workplace in which the use of jokes, derogatory comments, touching or other improper conduct is directed at individuals because of sex. Moreover, same sex harassment has been recognized as actionable. Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 79 (1998); Alamo Heights ISD v. Clark, 544 S.W.3d 755, 773-774 (Tex. 2018).

Employer Defenses to Harassment Claims. Employers with clearly defined policies against discrimination and harassment in the workplace (usually contained in employee handbooks), have enjoyed an affirmative defense to harassment claims that are not based on a tangible employment action by the employer. Tangible employment actions are adverse actions against an employee that result in termination from employment, demotion, withdrawal of benefits, etc. that are sanctioned by the company through a high-level supervisor, manager who has the power to make the change. See Waffle House, Inc. v. Williams, 313 S.W.3d 786 (Tex. 2010) (examples of tangible employment actions). When no adverse employment action is taken against an employee who is otherwise subjected to sexual harassment in the workplace, an employer can establish an affirmative defense to the claim if:

• The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and
• The employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities.

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The defense has translated into the requirement that an employer have a policy setting forth the employee’s rights, and a complaint procedure by which employees may complain about inappropriate conduct and obtain assistance from the company. The employer further promises to investigate all such claims and to take “prompt remedial action” to correct any harassment identified.  Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262, at *2 (Tex. App. – Texarkana June 3, 2021, no pet.). These defenses should still be available under the new Texas Sexual Harassment law if the requirements are satisfied, with the caveat that the employer must take immediate corrective measures to stop the sexual harassment.

What is Constructive Knowledge? 

“Constructive knowledge” of sexual harassment is determined when from the totality of the circumstances, the employer or supervisor had reasonable notice that harassment was occurring. Therefore, constructive knowledge is an inference of knowledge based on circumstances that a reasonable person should realize constitutes sexual harassment. See Contreras v.  Waffle House, 2002 WL at *8. (N.D. Tex. July 9, 2002) (pervasive harassment gives rise to “constructive knowledge”); Taylor v. Richardson Auto, 2007 WL 1964665 (N.D. Tex. July 6, 2007) (employee can show actual notice if he or she complained to management about pervasive sexual harassment); Waltman v.  Int’l Paper, 875 F.2d 468, 478. (5^th Cir 1989)(sexual graffiti at office put employer on notice of sexual harassment).  

• Me too evidence. Should be considered important, particularly under this new Texas law.  For example, many older Texas cases held that evidence of co-worker complaints about a harasser was insufficient to support a claim by another employee who was later subjected to the same or similar harassment. See, e.g., Colbert v. Georgia-Pacific, 995 F. Supp. 697 (N.D. Tex. 1998)(co-worker’s complaint against harasser did not put company on notice for purposes of constructive knowledge). The result would likely be different today in the era of “me too” evidence and under the new Texas Sexual Harassment law.

What is Prompt Remedial Action?  

To satisfy the requirement that an employer take “prompt remedial action” to correct any offensive conduct in the workplace, the employer must show that actions were taken that were reasonably calculated to stop the harassment. Skidmore v. Precision Printing, 188 F.3d 606, 615 (5^th Cir. 1999). The new Texas law requires “immediate remedial action” rather than “prompt remedial action.” Extrapolating from other states with similar requirements, immediate action requires speed and diligence, and good faith investigation that results in measures sufficient to stop sexually harassing conduct. This requires, for example, that the complainant and alleged harasser be separated immediately while an investigation is being conducted. The investigation should include interviewing witnesses immediately after the complaint is made to obtain information necessary to determine the appropriate measures to be implemented. This may include simply separating the two individuals and making sure that any supervisory authority on the part of the alleged harasser has been eliminated, additional training, or terminating one or more employees.

Individual Liability for Owners, Managers and Supervisors.

Under Title VII and the former TCHRA, individual managers and supervisors could not be held liable for sexual harassment claims. Smith v. Amedisys, Inc. 298 F.3d 434, 448 (5^th Cir. 2002) (no individual liability under Title VII); Anderson v. Houston Comm. College Sys., 458 S.W.3d 633 (Tex. App.—Houston [1^st Dist.] 2005, no pet.)(no individual liability under TCHRA). Under Title VII and other portions of the TCHRA, employer is defined as a “person engaged in industry affecting commerce” or an “agent” of such person. See Swafford v. Bank of Am. Corp., 401 F. Supp.2d 761 (S.D. Tex. 2005). In most states, including Texas, a supervisor or manager did not qualify as an agent of the employer and no personal liability applied to such individuals. With respect to other forms of discrimination, such as based on race or religion, for example, this prohibition on individual liability still exists.

Under the amended Chapter 21 sexual harassment law, “employer” specifically includes any person who “acts directly in the interests of an employer in relation to an employee.” Tex. Labor Code §21.141(1). This individual liability clause is taken from other employment laws in which individual supervisors and managers may be sued for their part in violating employment laws.  For example, the Fair Labor Standards Act (“FLSA”) defines employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee. 29 U.S.C. §203(d). The FLSA allows employees to seek unpaid overtime from the company, and from a supervisor or manager who made the decision not to pay overtime to the employee. The Family Medical Leave Act (“FMLA”) likewise has an individual liability requirement that defines employer as “any person who acts, directly or indirectly in the interest of an employer to any of the employees of such employer.” 29 U.S.C. §2611(4)(A). Thus, an officer or supervisor with sufficient control over the employee may be held liable under the FMLA. See Greenlee v. Christus Spohn Health, 2007 WL 38284, 12 Wage & Hour Cas.2d (BNA) 366 (S.D. Tex. Jan. 4, 2007)(supervising nurse who denied plaintiff benefits could be held personally liable under FMLA).  

Sexual Orientation Harassment.

The new Texas law most likely applies to Sexual Orientation Harassment. Recently, Texas recognized that discrimination based on sex includes sexual orientation discrimination and harassment. See Tarrant County College v. Sims, 621 S.W.3d 323 (Tex. App. – Dallas 2021, no pet.) (applying analysis based on Title VII analysis of the United States Supreme Court decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020) to the TCHRA). It is likely, therefore, that sexual orientation harassment is covered by the amended Chapter 21 statute so that even small employers must adequately address these issues in the workplace, and train their employees to understand that sexual harassment includes improper conduct based on negative attitudes towards people because of their sexual orientation.

New Obligations for Employers.

The Texas Sexual Harassment law is an indication that Texas employers will need to join other states in more aggressively preventing sexual harassment in the workplace. This means taking more aggressive and more immediate measures to identify and correct sexual harassment in the workplace. Internal programs will necessarily include:

• Training employees on what types of conduct will be considered sexual harassment (including same sex and sexual orientation harassment);
• Developing written policies to explain to employees how to complain about sexual harassment they have experienced or have witnessed;
• Making sure employees are informed that no one will be retaliated against them for making a complaint or participating in a complaint, and that all complaints will be taken seriously.
• Conducting investigations of complaints immediately, no matter how minor the complaint may seem, and interviewing witnesses without delaying that process for days or weeks.
• Taking prompt remedial action to correct any sexual harassment. This may include training, separating a supervisor from a particular employee, counseling the harasser, suspensions without pay or terminating the harasser for severe or repeated conduct.
• Take preventative measures by conducting periodic assessments of any potential problems in the workplace. DO NOT WAIT until a situation arises. If inappropriate behavior is present, take measures to stop it before a complaint is filed.

The information contained in this article is not designed to address specific situations. If you have questions concerning this topic, you may contact me directly or consult with other legal counsel for advice on fact specific matters.

Robin Foret is a Managing Member at Seltzer, Chadwick, Soefje & Ladik, PLLC, and is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. Robin Foret is a frequent speaker and writer on employment law compliance topics. She also provides training for companies to assist them comply with federal and state employment laws. She can be reached at rforet@realclearcounsel.com or by telephone at (469) 626-5358. You may also visit the website for more information about our law firm’s services at www.realclearcounsel.com.

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[1]  This article deals with private employers.  It does not address the applicability of the new law to public entities.

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