Texas Joins the #MeToo Movement, Expands Employer and Individual Executive Liability for Sexual Harassment Claims

Texas is making waves due to its new anti-sexual-harassment laws, effective September 1. Gov. Greg Abbott, a Republican, recently signed the two bills, SB 45 and HB 21, into law. Although no judges have interpreted the laws yet, the four major potential areas of expansion of liability are described below.

1. All employers are covered. An employer is one who employs “one or more employees.” This is a significant expansion of liability from the current standard, under which employers with fewer than 15 employees are not covered.
2. The new Texas Sexual Harassment Act potentially creates individual liability for managers. An employer is also defined as someone who “acts directly in the interests of any employer in relation to an employee.” Texas has never before had express statutory liability for individual managers or executives for harassment claims.
3. The new act potentially creates liability for failing to take action quickly after a report of sexual harassment. An “unlawful employment practice” occurs if there is sexual harassment of an employee “and the employer or 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.”
4. The new act lengthens the statute of limitations from 180 to 300 days.

To help protect themselves from liability, employers can do the following:

1. Train their executives to recognize incidents of sexual harassment, and learn when and how to report. Many executives have a hard time identifying when a complaint should be brought to HR or legal and may try to resolve issues on their own. Training should focus on real-life examples to help demonstrate to executives how and when to document issues in writing and when to ask for help in addressing personnel issues.
2. Update company policies to ensure they comply with the new laws, especially with respect to reporting. Under these new laws, employer policies should clearly provide for mechanisms for reporting of complaints and set forth in no uncertain terms that retaliation for making a good-faith report is impermissible and will not be tolerated.