Starting September 1, 2021, claims for sexual harassment will undergo some major changes in Texas. First, under Texas law, the statute of limitations for sexual harassment claims climbs from 180 days to 300 days. Second, the new provision will now allow employees to file sexual harassment lawsuits against nearly every employer, and—for the first time—supervisors, coworkers, and other individuals can also be held personally liable for sexual harassment. These changes have three practical implications for employers.
 

• First, employees now have up to 300 days from the day of alleged harassment to file a charge with the Texas Workforce Commission (“TWC”). While employees have always had 300 days to file sexual harassment claims with the Equal Employment Opportunity Commission under federal law, this new change allows employees to file those claims with the TWC for up to 300 days. So employers can be on the hook for state law claims for longer periods of time. It is important to keep in mind that the extended statute of limitations only applies to alleged harassment that took place on or after September 1, 2021.
• The second, more significant change is that all employers that have at least one employee are now subject to sexual harassment lawsuits. Prior to this change, only employers with 15 or more employees in a given timeframe could be sued. So this law will substantially increase the number of employers that can be sued for sexual harassment.
• The third practical implication for employers applies to individuals. Prior to this new law, employees could sue only their employer (i.e., the company) for sexual harassment. An individual supervisor could not be sued in his/her individual capacity for sexual harassment. That will now change. Starting September 1, 2021, employees can sue their employer and anyone who “acts directly in the interests of an employer in relation to an employee.” Presumably, that includes managers, supervisors, and coworkers, because they often act for their employers. It is unclear at this time whether non-employees (independent contractors, vendors, or volunteers) can be held personally liable if they are acting in the interest of the employer, although the law appears to cover those individuals as well. The courts will ultimately have to interpret these new provisions before we know the nuances of how these changes will work in practice.

But it is not all bad news. The new law applies only if the employer (or agents) knew or should have known the conduct constituting harassment was occurring and failed to take immediate and appropriate corrective action. There currently exists a defense with similar requirements, but this new law appears to place the burden on the employee to prove those allegations, which is helpful to employers. Again, however, we will have to wait and see how courts interpret these new provisions.

In light of these changes (which, again, take effect September 1, 2021), employers of all sizes, including small employers, should institute the following safeguards:

• Create and disseminate an employer handbook (or a specific policy) detailing what constitutes harassment, a prohibition on harassment, and the steps an employee should take if they experience sexual harassment in the workplace;
• Review current policies to ensure compliance with the current state of the law on harassment and to ensure an adequate reporting system exists;
• Conduct periodic (at least annually) trainings for employees and supervisors on sexual harassment and reporting.

If you have questions on these new provisions, sexual harassment policies/trainings, or sexual harassment generally, please feel free to contact Kemp Smith's Labor and Employment Department at 915-533-4424