Here is a quick summary of how the changes affect Texas employers:

Change relating to number of employees: 

Currently, employers with 15 or more employees must comply with the Texas Labor Code’s anti-sexual harassment laws. Effective September 1, 2021, pursuant to Senate Bill 45 (Tex. Lab. Code § 21.141), employers with “one or more employees” must comply. 

Change in the definition of who is considered an employer: 

Senate Bill 45 defines “employer” as a person who “acts directly in the interests of an employer in relation to an employee.” As Polsinelli points out in their article in The National Law Review supervisors, managers, and co-workers (such as human resource professionals) may also be named as defendants in sexual harassment lawsuits and held personally responsible for damages—significant in that this potentially triggers individual liability against the alleged harasser. Further, there is now a possibility that other third parties, such as agents, vendors, clients, and independent contractors, might be considered “employers.” Companies might not want to only review their own policies and procedures for compliance, but also address potential liability issues in their client, vendor and service provider contracts. 

The term “sexual harassment” is clarified: 

Senate Bill 45 provides a more clear description of what constitutes “sexual harassment” to assist with the investigation of complaints: “an unwelcome sexual advance, a request for sexual favor, or any other verbal or physical conduct of a sexual nature if: (a) submission to the advance, request, or conduct is made a term or condition of an individual’s employment, either explicitly or implicitly; (b) submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual’s employment; (c) the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual’s work performance; or (d) the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.”

Immediate and appropriate action following a complaint is required: 

Senate Bill 45 provides that an unlawful employment practice occurs if an employee is subjected to sexual harassment 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.”  Although the bill does not define “immediate and appropriate corrective action,” a heightened standard for employers to respond appears implied from the current requirement (“prompt remedial action”). It is now more imperative that the employer take any complaints seriously and immediately address concerns raised, which includes launching and pursuing an accurate, detailed and bonafide investigation, interviewing the parties involved, arranging for the alleged harasser to be placed on leave pending the outcome (or alternatively moving one or the other party to a different work area or department to avoid contact during such time), and bringing the investigation swiftly to a conclusion with proper remedial measures, such as firing of the harasser, if required.

Deadline for filing charges with the Texas Workforce Commission have been extended: 

House Bill 21 (Tex. Lab. Code § 21.201(g) now allows Texas employees who believe they have suffered from unlawful employment practices based on sexual harassment events occuring after September 1, 2021, to file a charge with the Texas Workforce Commission within 300 days of the alleged event. For claims based on any other protected class under the Texas Labor Code (e.g., race, color, age, etc.), the current statute of limitations of 180 days will continue to apply. 

Don't take #MeToo scandals involving companies and organizations for granted. Take the time to hit that pause button and evaluate your work culture for toxic masculinity, sexual harassment, and racism. Educating employees and company leaders regularly and effectively regarding prevention is likely to engender a more healthy workplace of dignity and respect and ultimately improve the bottom line concerning health-related costs and profitability. For more, please see our book ‘Play Nice - Playground Rules for Respect in the Workplace,’  We address this subject and related topics in great detail with real-world examples and basic communication tools—to help women combat this type of behavior as a victim, and to help men and women when they are bystanders. Male intervention is especially helpful since men will listen to men. 

We should reward #upstanders and encourage companies to support #MeToo and to handle sexual harassment violations with transparency, respect, responsibility and accountability. We will then move the needle and #changetheculture to a more healthy and prosperous environment, free from #abuse and #workplacesexualharassment. What will you do to make a difference?