September 1st is coming. And with it a change to Texas’ employment discrimination law arguably making supervisors or managers liable for sexual harassment. Now is a great time to dust off that sexual harassment training.
Here are the top three things you need to know about the new sexual harassment law amending the Texas Commission on Human Rights Act (“TCHRA”), which go into effect September 1, 2021:
- If your company has one or more employees, it will be subject to this new sexual harassment law. This is different from the rest of the TCHRA, wherein sections applicable to “employers” are only applicable to employers with 15 or more employees during a relevant time period.
- Liability for sexual harassment under the law occurs when (1) the employer or the employer’s agents or supervisors know or should know of the sexually harassing conduct and (2) fail to take immediate and appropriate corrective action. This new standard echoes an employer’s duty under Title VII (which applies to employers with 15 or more employees) to take prompt remedial action that is calculated to stop harassment by non-supervisory co-workers. An employer may thus avoid Title VII liability by taking prompt remedial action. Now, taking “immediate and appropriate correct action” may act as a bar to liability for sexual harassment under the Texas law as well.
- Individual supervisors may arguably be held personally liable for sexual harassment for their failure to take immediate and appropriate corrective action, if they know or should know of the sexually harassing conduct. This is because the definition of employer for purposes of this section now includes a person who “acts directly in the interests of an employer in relation to an employee.” This is in contrast to previous legal precedent interpreting the TCHRA to not allow individual liability for supervisors and managers.
In addition to notifying supervisors of the change in law, companies should review their sexual harassment policy to determine if any changes are needed. Companies with fewer than 15 employees may need to start from scratch. A policy for reporting harassment is a first line of defense for employers against liability for discrimination. It’s also a first line of defense for employees against harassment. Put simply, a policy that sets forth a clear procedure for submitting complaints of sexual harassment (or other potentially unlawful behavior) – and acknowledges that the company will take prompt remedial action – should be a priority.
