It’s been a month of ups and downs for the #MeToo movement. Bill Cosby was released from jail. Andrew Cuomo of New York resigns as the state’s governor. And Prince Andrew is being sued for relations with a minor. All of these, though seemingly high-seated circumstances, involve real victims and real pain. They can also have a crippling impact on a business if it occurs in the workplace. We’ve written about it here in the case of a restaurant fined for misconduct of a supervisor. It’s logical to see now that some states, like Texas, are expanding the protections against gender discrimination in the workplace.
Texas passed two pieces of legislation in May and June this year which go into effect September 1, 2021. This is an important change for HR teams to be aware of. Make sure to communicate it to your employees. You will probably need to adjust some of your policies and practices.
1. Expanded period to submit a sexual harassment claim
An employee may now file an administrative charge asserting claims for sexual harassment for nearly a year after the alleged harassment. Prior to this, the law in Texas stipulated 180 days as the limitation period. It is now 300 days. This is a big step for victims of harassment who sometimes need time to process an unwelcome advance coming out of left field. Abusive behavior can confuse a victim. Therefore, increasing the limitation period is a good development to protect victims and give greater credibility to their complaints.
2. Liability for small businesses, individuals
Prior to this new legislation, only businesses with 15 or more employees could be sued and held liable for harassment charges. Under the new law, any employer, defined as the business itself, could be held liable, regardless of size. And a further development takes form in this law: even supervisors and co-workers can be held personally liable for misconduct. In this way, employers who had some bad actors, and who used to throw the liability at the company, can no longer hide these persons in the company. This is a change which all employees need to understand, and every employer must take very seriously.
3. Swift, corrective action
Until now, you could hold employers liable for sexual harassment committed by a coworker if they knew (or should have known) of the harassment and didn’t take remedial action. The new Section 21.141 of the Texas Labor Code states that an employer commits an “unlawful employment practice” if “sexual harassment of an employee occurs 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” (emphasis added). This means, not only must the corrective action be adequate, it cannot sit on someone’s desk for a week before being addressed. While the law does not define what “immediate” means, it seems to mean as quickly as reasonably possible, without delay.
What to do now as a small business
Many small businesses in Texas do not even have handbooks or policies in place to address sexual harassment. Now is the time to be proactive and set something up. Since September 1, 2021 is the effective date of the new laws, employers in Texas will need policies in place to ensure these things:
- Employees know who to speak with and submit a complaint if they are experiencing sexual harassment.
- Take sexual harassment complaints seriously and investigate immediately without delay.
- Take corrective action promptly when needed (and discretely unless otherwise demanded by the circumstances).
- The corrective action must end the harassment and prevent it from happening again.
- Provide anti-discrimination and anti-harassment training for all employees.
- Make sure employees are not retaliated against for complaining about sexual harassment or participating in an investigation.
- Document every step of the way: from a complaint to investigation to corrective action to enforcing policies.
Refresher on definition of sexual harassment
The Texas Workforce Commission defines sexual harassment as anything that “can be unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.”
The Commission states that if the described behavior unreasonably interferes with an employee’s performance at work, it can be considered sexual harassment. It goes into more detail and says that if it creates an intimidating, hostile or offensive work environment, then that can be considered sexual harassment. However, “simple teasing, offhand comments or isolated incidents may not be considered sexual harassment,” the Commission says.
Despite the Commission’s qualifier, you should emphasize in trainings that any teasing, comments, or isolated incidents are serious. Especially if an employee perceives it as harassment. Just because someone’s intention may not be to harass, a message can be sent and actually constitute harassment.
At Suitless, we help make sure you and your business are compliant with your state and federal labor requirements. This new law lays a heavier burden on employers, as well as on supervisors, to ensure that sexual harassment in the workplace takes no shape or form. If you’d like to read the law itself, see the documents here and here. Reach out to us if you have questions on how to address this: firstname.lastname@example.org.