Her story: “I work at a small convenient store outside of town. I don’t know what to do. I can’t quit my job; it took me forever to find a job that works with my schedule. I am a single mother, and I have to take care of my child and I’m trying to finish school. I need this job, but ever since I started working, the owner has been making inappropriate sexual comments and gestures. It makes me uncomfortable and I’ve asked him to stop, but he won’t. Every day it seems to be getting worse. How do I stop him from doing this to me? I can’t take this. It isn’t fair. I just want to go to work and do my job and go home.”
The protections afforded under most of the anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act only apply if the employer in question has the requisite number of employees. For example, for employees to have protections under Title VII or the ADA, an employer must employ 15 people. For claims under the ADEA, there must be 20 employees. For an employee to be able to pursue claims under the FMLA, an employer must have 50 employees within a 75-mile radius of the location where the employee worked. The same is true for the counterparts of these laws found in the Texas Labor Code. Thus, whenever an attorney hears “small convenient store” or any other indication of a small employer, the typical follow up inquiry is figuring out how many employees are employed by the employer.
The requirement that these minimum thresholds be met before an employer can be held liable for illegal conduct leaves many employees powerless. For the most part, Texas specific laws are still modeled after federal laws. However, when it comes to sexual harassment in the workplace, which falls under Title VII protections as they relate to sex, the Texas Labor Code no longer looks like federal law.
Until recently, the woman making the above complaint may have been left with no options for seeking legal recourse for the sexual harassment she experiences. Thankfully, this will no longer be the case in Texas. Texas has now taken a bold step to protect employees from sexual harassment.
Employers in Texas will no longer be able to hide behind the defense of, “I only have 10 employees” for claims involving sexual harassment.
When it comes to sexual harassment in Texas, on September 1, 2021, under the Texas Labor Code, all employees will be protected from sexual harassment. For the purposes of sexual harassment claims, “employer” will now be defined as “a person who employs one or more employees.” But wait, that’s not the only change in the law as it relates to the definition of employer. Supervisor, managers, and human resources personnel beware. When reports of sexual harassment are made, the named Defendant may include you. The definition of “employer” also includes “a person who acts directly in the interests of an employer in relation to an employee.” Indeed, after September 1, 2021, supervisors, managers, human resources personnel, and other third parties acting directly in the interest of the employer may find themselves being held personally liable for damages.
Aside from expanding the definition of employer, the timeline for filing complaints of sexual harassment under Texas law will be expanded from 180 days to 300 days, which will put it in line with similar types of claims pursued under federal law.
Lastly, Texas law seems to be changing what is required of employers in the way of responding to complaints of sexual harassment. In the past, employers have been required to take “prompt remedial action.” The new law will require employer’s take “immediate and appropriate corrective action.” Courts will still need to interpret this standard. Yet, the departure from the old requirement, indicates that Texas lawmakers are intending to take a stronger stand against sexual harassment and are requiring employers to take real action in response to these very serious complaints.
These changes stand for a much-welcomed change that is needed in the legal landscape of Texas. Often times, these legal loopholes leave many of the most vulnerable employees without any protections. If you are experiencing sexual harassment at work and would like to know your rights, don’t hesitate to contact an experienced employment lawyer. Contact our office, we are available to discuss your circumstances and a plan of action.