As most Texas employers are aware, prohibitions on discrimination (which includes harassment) and retaliation are imposed by the Texas Labor Code only on those employers with 15 or more employees. These prohibitions mirror, for the most part, similar prohibitions imposed by various federal laws. As the Texas legislative session drew to a close, however, two significant but curious amendments to the Labor Code were passed and subsequently signed into law by Governor Abbott, which amendments go into effect on September 1, 2021.
SB 45 amended the Labor Code to add a new subchapter that allows claims of sexual harassment against employers with as few as only one employee and provides for liability for those who act “directly in the interests of an employer in relation to an employee,” which, arguably, opens the door for individual liability, such as against managers and supervisors, which is not permitted for other claims of discrimination, harassment and retaliation. Additionally, and despite established law providing a defense to claims of sexual harassment to those employers who take steps to prevent such conduct and who take prompt, remedial action to correct any such conduct, the new Texas law requires employers to take “immediate” and appropriate corrective action where the employer knows or should have known of the sexual harassment. While it is unknown why the legislature chose to ignore the widely accepted interpretations of federal and state laws requiring “prompt” remedial action, selection of the word “immediate” will likely be argued by employees and their attorneys to impose a requirement for more expedited action by employers in response to a claim.
Texas employers are also likely aware that an individual complaining of discrimination, harassment or retaliation under the Texas Labor Code is required to file a Charge of Discrimination within 180 days of the alleged conduct, while a Charge complaining of such conduct under the federal laws must be filed within 300 days. In addition to expanding liability for sexual harassment under SB 45, the legislature passed HB 21, which amends the Labor Code to increase the Charge filing period to 300 days, but only with respect to claims of sexual harassment. Charges for all other claims of discrimination, harassment and retaliation under the Texas Labor Code remain subject to the 180-day Charge filing period.
Having stepped onto the slippery slope, the legislature will likely be pressed by countless advocacy groups to extend similar protections to all other forms of discrimination, harassment and retaliation going forward. After all, it will be argued, it is unfair that an individual employed by a small employer with only five employees can make a claim of sexual harassment, and that he/she has 300 days within which to do so, but that other employees who are discriminated against or harassed on any of the other protected bases have no right to pursue those claims against the very same employer. Just as importantly, it must be noted that, as currently drafted, the Texas Labor Code does not extend protection against retaliation to employees of smaller employers who make claims of sexual harassment, as the Labor Code doesn’t provide that protection until an employer has 15 or more employees.
Texas employers should be vigilant during future legislative sessions as various groups undoubtedly advocate for the expansion of other protections under the Labor Code. For now, though, Texas employers who have fewer than 15 employees should now implement the same training and protections as have been implemented by larger employers with respect to sexual harassment. Larger employers should continue to train all employees to recognize sexual harassment and all supervisors to identify, prevent and correct sexual harassment (as well as other forms of discrimination and harassment) so that they are in a position to take “immediate” and appropriate corrective action in response to any complaint.
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 and correct harassment, discrimination and retaliation in the workplace, please contact Ray Bissmeyer or your Dykema relationship attorney.