by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry
On September 1st a new law involving sexual harassment complaints became effective, changing our Texas Labor Code in important ways. This new law makes a lot more employers responsible for sexual harassment in the workplace. It gives the complainant a lot more time to complain about it, it also requires the employer who has received a complaint to take immediate and appropriate corrective action, and it expands who can be liable for not taking corrective action (which may mean you). The new law even states a violation can occur if the employer sees the harassment, or reasonably should have known about it, and did nothing to appropriately correct it. This is a huge change in the law.
First, this change is a really big deal because who an employer is under the law has been changed to include any employer who employs one or more employees. The new law doesn’t change the range of damage caps for successful claimants, but most every employer in Texas is now covered and will find such lawsuits aimed at them. This means we are about to get an avalanche of lawsuits, all of which will help us better define the parameters in the law (over time). Most colleges were already covered by sexual harassment restrictions because they usually have more than 15 employees, but these changes are far reaching and different.
What is new to them is this requirement that permits sexual harassment claims to be filed within 300 days (instead of 180 days) of the complained of conduct. To perfect a claim under Texas law, a complaint detailing the sexual harassment under this new law must be filed with the Texas Workforce Commission - Civil Rights Division (TWC-CRD). Additionally, your university up to now hasn’t been having to worry about taking appropriate corrective action when they see, or reasonably should know about the sexual harassment. And your college definitely has never been concerned about having to train you, as their employer representative, to not only identify sexual harassment, but then to also appropriately correct it - when you see it or should know about it. And you need to know if you don’t appropriately correct it (when you see it or should have known about it), you can be held individually liable for violating this law. This means you need to email this article to your HR Department and say I need some training - like right now!
The bottom line for you is to get help and get that help now. The litigation interpreting these new requirements will take literally years to wind their way through our court system, but you don’t want to be that first test case. As an employer representative, are you acting directly in the interests of the employer? If you are, you can potentially be liable to that complainant who names you, not just your employer college or university, as a defendant in their lawsuit.
For sexual harassment complainants, this is a new treasure trove of tools to use to make the workplace safer than ever before. I am pretty sure we will be talking and writing about this change in the law for many years to come. The legal principle ignorantia legis neminem excusat (ignorance of the law excuses no one), derived from Roman Law, seems an appropriate admonition as I complete this update on an important change to our labor laws in Texas that you really need to know all about.”
“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”