Changes to Texas Sexual Harassment Laws

On September 1, 2021, a new law went into effect regarding sexual harassment claims against an employer. This new law included three important changes.

1. Before September 1, 2021, employers with 14 or fewer employees could not be held liable for sexual harassment in the workplace. That is not the case anymore. All employers, regardless of staff size can now be liable for sexual harassment.

2. The second change, relates to the timing to bring a lawsuit. Before September 1, 2021, an employee would have to file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission (TWC) within 180 days of the sexual harassment to prosecute in State Court or within 300 days of the sexual harassment to file in Federal Court.

3. The third change is the standard the Courts will look at to determine if the employer is liable. The old standard allowed the employer to assert an affirmative defense if they (1) exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee fails to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. Waffle House, Inc. v. Williams, 313 S.W. 3d 796, 810 (Tex. 2010).

The new standard, allows for employer liability if: sexual harassment has taken place and the employer or the employer's agents or supervisors: (1) know or should have known that the conduct consisting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action. See Tex. Lab. Code Sec 21.142. . This means that an employer now must make a reasonable attempt to stop the harassment not just an attempt. There is no definition as to what "reasonable" is and that is up to interpretation.