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Texas expands protections for employees asserting sexual harassment claims

Updated: Nov 2, 2021

The Texas Commission on Human Rights Act (“TCHRA”) protects individuals from discrimination based on race, color, religion, sex, national origin, disability, and age. One of the purposes of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 (“Title VII”). [1] Until recently, TCHRA’s employee protections overlapped with—and extended no further than—Title VII. However, starting September 1, 2021, the TCHRA expands sexual harassment protections for Texas employees beyond the protections of Title VII.


1. New definition of employer


Senate Bill 45 (“SB45”) added a new definition of employer that applies in the sole context of sexual harassment claims. [2] Under Texas Labor Code Section 21.141, an employer means “a person who: (A) employs one or more employees; or (B) acts directly in the interests of an employer in relation to an employee.” [3] The effect of this new definition is twofold.


First, in contrast to Title VII, which applies to employers with fifteen or more employees, all employers in Texas may be held liable for sexual harassment claims asserted under the THCRA.


Second, the phrase “acts directly in the interests of an employer in relation to an employee” may impose individual liability on managers, supervisors, and owners. There is also the possibility that non-supervisory employees could find themselves personally liable under the TCHRA.


2. Immediate and appropriate corrective action


SB45 also created a new, and arguably heightened, standard for employer’s response to sexual harassment claims. Under Texas Labor Code Section 21.142, an employer commits an unlawful employment practice if there is sexual harassment of an employee and “the employer or the 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 appropriative corrective action.”[4]


The legislature’s use of the word immediate differs from federal and state law requiring prompt remedial action in response to alleged sexual harassment. What exactly the immediate and appropriate corrective action standard requires is unclear. But the chronological proximity between the timing of the alleged sexual harassment and the employer’s response will be paramount in court’s interpretation of that new standard.

3. Provides 300 days for employees to file a charge


House Bill 21 (“HB21”) lengthens the statute of limitations for employees filing sexual harassment claims. Previously, employees alleging sexual harassment had 180 days from the date of the alleged harassment in which to file a charge with the Texas Workforce Commission. HB21 increases that period to 300 days. [5]


4. Moving forward


In response to these new laws, all Texas employers should do the following:

  • Update anti-harassment policies.

  • Ensure that a process is in place where sexual harassment complaints are handled immediately and thoroughly investigated.

  • If necessary, undertake corrective action immediately. For example, separating the complainant and the accused or putting the complainant or accused on paid administrative leave.

  • Document, maintain, and retain records concerning sexual harassment complaints, investigations of any alleged sexual harassment, and any remedial action taken.

  • Regular workplace anti-harassment training for ALL employees.

  • If you carry Employment Practices Liability Insurance or have other coverage that may apply to sexual harassment claims, consult your broker about whether claims against your individual managers or supervisors are covered under your policy.

Lastly, it is important to remember that the THCRA provisions discussed above are limited to sexual harassment claims and do not apply to other types of unlawful discrimination (e.g., racial harassment).


For further information on this topic, please contact John B. Reyna at info@texashospitalitylaw.com. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-attorney relationship between the Texas Hospitality and Non-profit Law Center, PLLC and any recipient.


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[1] Tex. Labor Code § 21.001(1). For the remainder of Chapter 21 of the Texas Labor Code, the term employer means, among other things, “a person who is engaged in an industry affecting commerce and who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year . . . .”

[2] Id. at § 21.141(1). [3] Id. [4] Id. at § 21.142. [5] Id. at § 21.202(a–1).

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