Texas employment laws have historically tracked their federal counterparts and generally favored employers, but starting Sept. 1, 2021, amendments to the Texas Commission on Human Rights Act (“TCHRA”) expanded sexual harassment protections for Texas employees beyond the protections of Title VII. Most notably, the amendments expand the definition of “employer” and may extend liability to individual.
Reaches Individual Managers
Under the revised TCHRA, employees may be able to bring claims against managers or supervisors who had actual or constructive knowledge of sexual harassment if they (or the company) failed to take immediate remedial action.
For context, Title VII defines employers to include not only employing entities, but “agents” of employers. Courts have construed “agents” narrowly, generally excepting from Title VII individual managers and supervisors.
However, the TCHRA’s expanded definition of “employer” now includes a person who “acts directly in the interests of an employer in relation to an employee.” This language is more specific than the language of Title VII and may include managers and supervisors inside—or potentially outside—the line of direct supervision.
Although the consequences of this change will take some time to unfold, three repercussions are immediately clear: first, employees who join managers or supervisors in their state-court suits may destroy complete diversity so as to prevent removal to federal court; second, judges may be less inclined to grant summary judgment, as a manager’s actual or constructive knowledge may often prove to be a fact issue; and third, the potential imposition of liability on both supervisors and the company may put the parties at odds if either fails to take “immediate” action to rectify the harassment.
The revisions also elevate the standard for an employer to take remedial action. Employers were previously required to take “prompt” action, but now the action must be “immediate.” Case law will shape how literally courts are expected to interpret the word “immediate,” but the change seems to elevate the standard for action and constitutes another reason for employers to be proactive in analyzing and reinforcing policies and training.
Applies to All Employers and Settlements With Government Employees
In contrast to Title VII, the TCHRA now reaches all employers—not just those with 15 or more employees. In light of this, even the smallest employers should consider updating their policies and procedures on discrimination and sexual harassment and consider providing employees with additional training.
The TCHRA also prohibits the use of public funds to settle sexual harassment claims brought against elected or appointed government officials, likely reducing the percentage of those claims that are resolved in settlement.
Provides 300 Days for Employees to File a Charge
Potential plaintiffs presenting state-law discrimination claims have long been required to file a charge with the Texas Workforce Commission within 180 days of the events that form the basis of their claims. Now, employees alleging sexual harassment will have 300 days from the date of the alleged harassment in which to file a charge. With the expanded limitations period, some claims that otherwise would have been time-barred may now proceed.
Takeaways
Because the TCHRA now provides more extensive protections than Title VII in the sexual harassment context, employers should take proactive steps to update their internal policies and procedures. Texas employers should also consider providing supplemental sexual harassment training for both management and non-management employees. Training managers will be of vital importance given the fact that they may now be liable under the TCHRA.
McGuireWoods has an extensive team of labor and employment attorneys who can provide sound advice about how to best implement changes to protect against the expanded scope of the TCHRA.