Texas Expands Employer—and Individual—Liability for Sexual Harassment Claims

Nikki D. Kessling

Effective September 1, 2021, new provisions in the Texas Commission on Human Rights Act (“TCHRA”) provide greater protections and remedies for employees alleging sexual harassment. Key changes include the following:

    • The new provisions set a heightened standard for an employer’s response to a sexual harassment complaint. An employer now “commits an unlawful employment practice if sexual harassment of an employee 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.” This language somewhat (but not exactly) mirrors the Title VII analysis for coworker harassment claims, which considers whether the employer took “prompt” and effective remedial action. The amendments to the TCHRA do not define what amounts to “immediate and appropriate corrective action,” or to what degree “prompt” differs from “immediate,” and this is likely to be a disputed and litigated issue in Texas courts. Additionally, this new standard of proof does not differentiate between coworker and supervisor harassment claims—another potentially significant departure from Title VII, which generally holds employers liable for supervisor harassment unless they are able to establish an affirmative defense.
    • Unlike the remainder of the TCHRA, which applies to employers with 15 or more employees, the new sexual harassment provisions essentially cover all employers (anyone who “employs one or more employees”) and further opens the door to potential individual liability for managers, coworkers, or HR (someone who “acts directly in an interests of the employer in relation to an employee”). As a result, Texas plaintiffs may begin naming supervisors, HR professionals, and other involved employees as defendants in sexual harassment lawsuits—and those individuals may be held personally liable for damages if the plaintiff is successful.

    • In contrast to the TCHRA’s typical filing window of 180 days, a complainant alleging sexual harassment in violation of the TCHRA now has 300 days to file a charge with the Texas Workforce Commission.
    • Finally, “sexual harassment” is now specifically defined in the Labor Code in a manner that generally tracks Title VII:

“Sexual harassment” means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:

(A) submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either explicitly or implicitly;

(B) 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;

(C) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance; or

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

These changes do not affect any other types of alleged harassment or discrimination under the TCHRA—only sexual harassment.

Employers in Texas should take notice of and extra care in addressing allegations of sexual harassment by Texas employees. For example, employers should train and/or refresh Texas HR and managerial/supervisory employees on their duty to report any known or suspected sexual harassment through one or more available channels, to take action as quickly as possible, and to ensure the remedial actions are effective—as they now have potential liability, too. Employers also should consult with legal counsel to ensure their employment handbooks align with the new law. Notably, smaller companies (1–14 employees) that previously could avoid liability under the TCHRA may need to start from scratch. Please reach out to us if we can assist you with this or any other Texas compliance issue.

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