Sexual harassment is a hot topic lately due to recent high-profile lawsuits. From former New York Governor Andrew Cuomo to ex-Hollywood producer Harvey Weinstein, celebrity cases brought to light the current climate regarding workplace harassment.

Governor Abbott recently signed two new Texas laws into law regarding the matter. Both Senate Bill 45 and House Bill 21 favor employee rights regarding sexual harassment claims and went into effect on September 1, 2021.

What is Senate Bill 45?

Prior to Senate Bill 45 the Texas Workforce Commission (TWC) referenced Title VII as there was no existing Texas law on the matter. Under Title VII, only business owners with a minimum of 15 employees are held accountable for sexual harassment allegations. Once SB 45 goes into effect, Texas employers with as few as one employee fall subject to the new law.

In addition, SB 45 deems it unlawful for an employer to “(1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action.” This leaves quite a bit of grey area for Texas courts to clarify upon, so look forward to more precedent-setting cases over the coming months and years.

Senate Bill 45 Summary

  • Broadens employee rights
  • Applies to employers of 1 or more employees
  • Holds employer responsible whether they knew or should have known of the behavior
  • Requires immediate corrective action by the employer

What is House Bill 21?

House Bill 21 supports SB 45 by providing a longer statute of limitations for filing sexual harassment claims. The duration for claims submission increases from 180 to 300 days to allow for more disclosure time. Texas employees will also be able to choose between submitting their claims to the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission’s (EEOC).

House Bill 31 Summary

  • Expands statute of limitations from 180 to 300 days
  • Gives the option to file a claim with either the TWC or EEOC

What qualifies as sexual harassment?

According to the EEOC and NSVRC, sexual harassment can include but is not limited to any or all of the following:

  • Unwelcome conduct by harasser (same-sex or opposite sex-oriented)
  • Sexual advances by employer, supervisor, teammate, or client/customer
  • Lewd gestures
  • Sexually explicit content, such as jokes, images, or messages
  • Offers for compensation or promotion in exchange for sexual favors
  • Offensive remarks about one’s sex
  • Non-sexual harassment (repeated, severe teasing)

How should employers prepare their business for these changes?

Texas lawmakers have made it clear that workplace sexual harassment is a serious offense and will not be tolerated. Both laws add to employees’ rights and going forward we will see how the Texas courts interpret the new laws.

A best practice for Texas businesses is to make sure company policies and handbooks clearly reflect the new laws. Make sure to state that such behavior will yield immediate corrective action, starting with an investigation.

Businesses should train employees in sexual harassment prevention. However, Harvard Business Review reports that traditional workplace training measures often backfire. Bystander-intervention training presents a great alternative. “It’s the ‘If you see something, say (or do) something’ approach.”

Train employees to act as allies rather than reciting policies. Get team members involved in the prevention process. Not only will the company be educated in their rights, but they will also proactively be prepared as witnesses in the case that such behavior arises.

Lastly, well-informed managers and HR personnel are a must. Educate them in reporting and investigative procedures as if sexual harassment reporting will occur. Designate them as confidential resources to ensure employees feel safe enough to report to before situations become a problem.

According to HBR, “More than 90% of those who took their claims to the office wanted an informal, confidential process; 75% worried that a formal complaint would bring reprisal, rejection, or the silent treatment from their bosses, coworkers, or even their own families, and said they didn’t want their harassers punished—they just wanted the problem to stop.”

By proactively taking these steps, Texas business owners can prepare themselves for when the laws go into effect.

Best practice for Texas businesses

  • Update employee policies and handbooks to clearly reflect new laws
  • Implement bystander-intervention training for employees
  • Arm HR and managerial personnel with reporting and investigation procedures

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