Sexually Harassed At Work? It’s Now Easier To File A Complaint In Texas

Under two new Texas laws, even the smallest companies can be sued and complaints can cover harassment further in the past.

By Bret JaspersAugust 31, 2021 2:11 pm, , ,

From KERA:

Texas’ workplace sexual harassment laws are changing, giving employees more time to pursue a claim against a company.

The state’s rules will also now apply to many more businesses than they did before. While in the past, businesses with fewer than 15 employees were exempt from laws prohibiting sexual harassment, starting Wednesday, Sept. 1, the statute will apply to companies with at least one employee.

It could be a game-changer for both workers and small businesses.

‘That Is Isolation’

Imagine being a new employee at a very small company. You’re sexually harassed by the owner, and there are few other coworkers to enlist as potential allies. That was what happened to a North Texas woman interviewed by KERA.

“That is isolation,” she said. “If everyone has their own office … they’re even more isolated. And that’s a great breeding ground for sexual harassment and assault.”

Her boss started with inappropriate comments, then escalated to sexual harassment, and, ultimately to sexual assault. The experience was traumatizing.

“I stopped going there, and I opened up a lot to my friends and family and they embraced me with open arms,” she said.

The woman spoke to KERA provided she remained anonymous. She’s still exploring her legal options.

One legal option she doesn’t have right now under Texas law is filing a sexual harassment claim with the Texas Workforce Commission against the company, a precursor to filing a lawsuit. That’s because her employer had fewer than 15 employees and was therefore exempt under state law.

Attorney Javier Perez. Photo by Bret Jaspers.

“I was absolutely crushed,” the woman said, describing the moment she learned about the company size threshold. “I couldn’t believe that there was an exception for something like this.”

Her situation is not uncommon, according to Dallas attorney Javier Perez. He represents workers in cases like these (but not the woman in this story).

“I’d say I get a couple of those types of calls — where I can’t do something because of the size of the employer — maybe four, five times a month,” he said.

Once SB 45 goes into effect on Sept. 1, the threshold for sexual harassment claims drops in Texas. Companies with at least one employee can be held liable. Workers must still prove the harassment occurred.

New Responsibilities For Small Companies

Not only will SB 45 help employees seeking justice, it will force previously exempt employers to do more work to head off sexual harassment and avoid a costly lawsuit.

For example, many of these businesses don’t have human resources departments to set policy and organize trainings.

Plano employment attorney Ditty Bhatti said, in particular, the new laws could catch brand new companies off guard. Companies just getting off the ground are typically laser-focused on serving their customers and becoming financially sustainable.

“But this law, especially in Texas, makes it very important that employers focus on [sexual harassment policies] right from the beginning,” she said.

Among other changes, companies must now take “immediate and appropriate corrective action” if a supervisor knew or “should have known” about any sexual harassment.

Shannon Norris, a North Texas attorney who typically represents businesses, said management will have to put best practices in place.

“You need to train your managers to watch for things,” he said. “And just make it clear — if an employee has a problem, where do they go?”

Norris believes the requirement of “immediate and appropriate corrective action” begs the question: what is appropriate corrective action? Answering that should take a good deal of legal haggling in and out of court.

“Reasonable people can disagree about what’s reasonable. And unreasonable people certainly can,” he said.

Statute Of Limitations

Another change to Texas’ workplace sexual harassment rules is an increase in the time period covered by the law.

That law, HB 21, will give workers more time — 300 days after the incidence of harassment — to file a claim with the TWC. Other workplace complaints, such as racial or religious discrimination, must still be filed within 180 days of the alleged incident.

Perez said it often takes clients a while to become ready to pursue a claim and find a lawyer. Often, a worker has been fired or left a job before he or she seeks redress.

“Even if I filed a charge the day she comes to me, I can only reach back and address the prior six months,” he said of the old rules. “So if something happened seven months ago, there’s nothing I can do about that.”

Meanwhile, the North Texas worker in this story said she’s happy the state’s sexual harassment rules are changing to cover small businesses.

“Under these new laws, [people like me] will have more of a voice and more power and not be able to have … their livelihood held over their heads,” she said.

None of these changes will affect her case, though, because the new laws only apply for harassment that occurs on or after they take effect Wednesday. But she said it makes her feel better about the work world her future children will have.

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