As we reported in June, the Texas Labor Code was amended effective September 1 to expand liability for employers as to employee claims of sexual harassment. Specifically, the amendments to the Labor Code:
- Impose liability for sexual harassment claims on more employers, by expanding the protections of the Labor Code to employers with as few as one (1) employee;
- Open the door for potential individual liability by owners, supervisors, and managers for claims of sexual harassment;
- Require an employer to take “immediate” and appropriate corrective action in response to a claim of sexual harassment, potentially accelerating an employer’s need under federal law to take “prompt” remedial action; and
- Increase the Charge-filing period for those claiming sexual harassment from 180 days to 300 days.
Additionally, and of importance to Texas public employers, the Texas legislature, through SB 282, amended the Government Code and Local Government Code to prohibit the use of public funds to settle sexual harassment claims against elected or appointed members of the executive, legislative or judicial branches of state or local government (including commissions and boards) and amended the Education Code to make this prohibition apply to open-enrollment charter schools.
Ultimately, the expansion of liability under these changes will be determined by courts, as they interpret the differences in wording between the new law and existing state and federal law. Until then, however, Texas employers should renew their efforts to provide a workplace that is free from discrimination, harassment, and retaliation. While these changes only apply at this time to claims of sexual harassment, Texas employers would be wise to:
- Review and, where necessary, revise policies prohibiting discrimination and harassment and identifying the appropriate methods of reporting inappropriate conduct;
- Review and, where necessary, revise policies prohibiting retaliation against those who may complain of inappropriate conduct and identifying procedures for reporting alleged retaliation;
- Conduct periodic training for all employees regarding the company’s expectation that employees will be able to work in an environment free from inappropriate conduct, as well as the company’s expectation that employees should report such conduct so that it can be appropriately addressed;
- Conduct periodic training for supervisors and management—including all executives—regarding the company’s policies regarding these matters, their obligations to identify and respond to inappropriate conduct, and their role in investigating complaints and taking appropriate remedial action;
- Identify and train those who may be called upon to receive and/or investigate complaints of discrimination, harassment, and/or retaliation, as well as identifying possible third-party resources related to such matters; and
- Ensure that efforts to prohibit, investigate and remedy inappropriate conduct are documented.
If you have any questions regarding these important changes to Texas law, or if you would like to discuss policies, training, or other measures intended to prevent, investigate, and/or correct harassment, discrimination, and retaliation in the workplace, please contact Ray Bissmeyer or your Dykema relationship attorney.