It takes skill to hit a moving target. When it comes to compliance, the most challenging part is keeping up with laws that are constantly changing. Every time a law is changed, it necessitates a shift in the way we conduct business — at least if you hope to avoid future liability.
Effective September of 2021, the State of Texas has two new laws on sexual harassment, House Bill 21 (“H.B. 21”) and Senate Bill 45 (“S.B. 45”). Both amend the Texas Commission on Human Rights Act and will have an immediate impact on private employers in Texas— no matter how many employees you have.
It is vital that all Texas employers take notice of these new laws and adjust their workplace practices, not only to diminish the potential of sexual harassment incidents within your business, but also to shield it from potential liability.
Since the passage of H.B. 21 and S.B. 45, employers in Texas are now more vulnerable than ever to sexual harassment claims from employees due to some major updates to the prior laws.
First, under H.B. 21, the timeline for filing a complaint of sexual harassment against an employer has been extended. The timeline for an employee to file a sexual harassment complaint with the Texas Workforce Commission (“TWC”) has almost doubled. Previously, the window to file a complaint was 180 days and now, victims have 300 days to file a complaint. Second, victims can now file claims of sexual harassment against managers and supervisors in addition to employers. And third, liability has been expanded to include a supervisor or manager failing to take “immediate and appropriate corrective action.”
Additionally, S.B. 45 has expanded sexual harassment liability in several areas. Now, all individual supervisors and managers who already knew about sexual harassment incidents in the workplace or “should have known” about these incidents can be held liable for harassment. The law requires anyone in a managerial position who witnesses this behavior to make an immediate corrective action. On top of that, all Texas employers can now be held liable in court for sexual harassment even if the company only has one employee.
These recent changes should encourage Texas employers in all industries to take a renewed interest in their sexual harassment policies and training and make necessary updates immediately. In particular, supervisors and managers should undergo sexual harassment training and be informed that they can be held individually liable if they fail to apply the “immediate and appropriate corrective action” that the law demands.
The rules of compliance are constantly changing. Even for us lawyers, it takes time and energy to stay up-to-date on the latest developments in each state. That’s why we always recommend leaving compliance to the experts. As a business owner, you already have enough on your plate.
So how do you handle the daunting task of updating your workplace policies to mitigate the new risks created by these changes in the law? If you are a small business owner and you do not have sexual harassment policies in writing, we recommend adopting policies to mitigate risk.
If you already have policies in place, give them a second look. Ensure the policy matches the most recent law by including a section mandating that management apply corrective action immediately upon noticing sexual harassment in the workplace. Furthermore, spell out what constitutes “appropriate” corrective action. Mitigating risk in this instance means ensuring your workplace is following its zero-tolerance for sexual harassment. This should start at the top with your management team. Once management is trained and competent on recognizing sexual harassment in the workplace, and knowing how to handle it to mitigate risk, they can train the entire team.
If you have any questions about your sexual harassment policies and training, email us at info@byrdadatto.com.
