Several changes to the Texas labor codes have affected sexual harassment claims. On a recent State Bar of Texas Podcast episode, I talk with host Rocky Dhir about how these changes make it easier for people to pursue a claim and how the definition of an employer has changed. I offer insights on how victims of sexual harassment in the workplace can file a claim. Listen to the podcast below.
Gender discrimination in the workplace is not an uncommon situation. I share my expertise on the subject with Holly Caplan on her podcast, Talking Confidence with Holly Caplan.
Listen as I answer some common questions such as “how does someone know when it’s time to contact a lawyer” or “are there time limits if I want to take action.” I also give tips on what you need to know and do in gender discrimination situations. Listen to the podcast below.
With broad bipartisan support, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. President Biden is expected to sign this bill soon.
The changes this law makes are significant. Under this law, an employer can no longer force an employee to arbitration a claim that involves sexual harassment or sexual assault allegations. Instead, the employee may pursue those claims in state, federal, or tribal court.
The Act also prohibits the waiver of a right to pursue sexual harassment or sexual assault claims as part of a joint action, collective action, or class action.
Under the Act, a “sexual harassment dispute” is a dispute related to conduct alleged to constitute sexual harassment under Federal, Tribal, or State law. “Sexual assault dispute” is a dispute involving a nonconsensual sexual act or sexual contact, as those terms are defined in other statutes.
The most significant part of this statute is that its application is retroactive. So, for employees who have already signed an arbitration agreement, if the employee has a sexual harassment or sexual assault dispute, that old arbitration agreement will not apply. The employee is free to sue in state or federal court.
However, it is not retroactive for cases already litigated through arbitration. Those cannot be reopened and relitigated.
The importance of this Act to individuals who suffer sexual harassment and sexual assault cannot be overstated. This law is a game-changer.
With this Act, employers must give serious thought as to how to handle sexual harassment and sexual assault claims. One reason that employers have preferred to arbitrate such claims is that arbitration proceedings are generally confidential. The public rarely learns of the allegations made in a confidential arbitration proceeding.
Another reason employers prefer arbitration is that they need not fear a “runaway jury” award. That protection is now gone.
It will be very interesting to see how employers respond to this new law once President Biden signs it.
Now that employers cannot rely on the confidentiality of arbitration to protect from bad publicity arising from a sexual harassment or sexual assault claim, they will need to be more proactive in protecting employees.
Employers can no longer ignore red flags or conduct biased investigations.
Far too often, when an employee complains about sexual harassment, the investigation conducted (if any) is half-hearted at best. Far too often, investigators ignore red flags, do not seek additional evidence, and do not interview witnesses who may have information.
Now that employers cannot rely on arbitration to protect from large jury verdicts in sexual harassment or sexual assault claims let’s hope that employers take proactive steps to improve the protection of employees.
How do you measure equal pay? Is it the employee’s base salary? Or is it the employee’s total compensation?
A recent Fourth Circuit case, Sempowich v. Tactile Systems Technology, Inc., answered this question. In Sempowich, a female employee and her male peer were both paid a base salary and also earned commission income based on sales. The male employee was paid a higher base salary in 2015, 2016, and 2017 (even though he had less seniority and lower performance review scores). However, Ms. Sempowich’s total earnings in 2016 and 2017 were more than the male employee’s because she received more in sales commissions.
When she sued, the district court used her “total wages” as the metric for determining wage discrimination under the Equal Pay Act. Because Ms. Sempowich had earned more in total wages in those two years, the court dismissed her Equal Pay Act claim.
Ms. Sempowich appealed and argued that the proper measurement was the “rate” at which her employer paid her—the base salary.
The Fourth Circuit agreed—based on the text of the Equal Pay Act. The statute says an employer may not “discriminate … between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex.”
This statutory language says nothing about “total wages.” Instead, it focuses on the wage rate. Here, Ms. Sempowich’s base salary was lower than her male peer’s base salary. So, she was paid at a rate lower than her male peer. Because of that, the Fourth Circuit found that the district court erred in dismissing her claim.
To drive home this conclusion, the Fourth Circuit used a hypothetical to demonstrate why total pay cannot be the proper point of comparison. Assume a company pays a woman $10 per hour and a man $20 per hour. If total wages is the measure of pay, the company would not violate the Equal Pay Act if the woman earned more than the male employee—even though she would have to work twice as many hours to do so. A woman should not have to work twice as many hours to make the same money.
That makes sense. A company cannot say it pays its employees equally if one employee has to work twice as many hours to make the same money. Likewise, that a female employee earned more in commissions than her male peer should not mean that her employer did not discriminate against her by paying her a base salary lower than her male peer.
This seems to be a common-sense conclusion. Unfortunately, it was not to a district judge in North Carolina. Fortunately, the Fourth Circuit caught and fixed this error.
Pay issues can be tricky, but the rate of pay is the starting point for any pay discrimination analysis—not total pay. It is good to have clarity on that point.
One of the most frustrating things right now for job seekers is that employers are screaming they cannot find enough employees. Yet, thousands of well-qualified people remain unable to find a job.
Why?
The reasons are many, including biases. For example, age discrimination is real. During the pandemic, it has gotten worse as many older employees lost jobs, and they have found it very difficult to replace the lost jobs.
Another stubborn (and less publicized) bias is the bias against the unemployed.
One common saying is that it is always easier to find a new job while you have a job. Sadly, that is true. Many companies screen out people who have been unemployed for six months or more for unknown reasons. There is no good reason to screen out the entire unemployed out of work for six months just automatically. That reflects all kinds of bias. For example, it screens out people who have taken time out of the workforce to raise a family. It screens out people who may need to take time off for a serious health condition or care for family members with a serious health condition. As those people try to go back to work, they hit the brick wall of bias against the unemployed.
A new area getting a lot of attention right now is artificial intelligence in the hiring process. Most job search boards and many large companies use artificial intelligence and algorithms to help screen the job applications they receive.
While AI is undoubtedly a helpful tool for companies to use in screening applicants, it can create many problems. Applicants have to figure out the “magic” word that will cause the AI to catch their resume or job application. If an applicant does not use just the right word to trigger a hit, a human will never see that application.
Because the AI is programmed to look for certain experience levels, it does not catch the strong applicants out there who do not have the perfect match in terms of experience sought but could still be excellent employees if given a chance and a bit of training. Intangible skills don’t necessarily translate well to AI.
Unfortunately, research shows that bias can permeate the algorithms used by those AI tools. This may cause discrimination against all kinds of protected groups. For example, years ago, Amazon had to scrap a recruiting tool it had designed to screen resumes for top talent. When it tried to use the tool, it found the AI screened out qualified women because the algorithm was based on ten years of patterns in resumes submitted to the company. Because most of those resumes came from men (due to the pattern of male dominance in the tech industry), the system did not rate candidates in a gender-neutral way and had to be tossed.
A company can run tests on the algorithms it uses in job screening to search for bias, but many companies do not do that. However, it sounds like it would be smart for companies to do so.
One of the next waves of litigation will be the challenge of such biased tools in hiring. Smart companies will make sure their AI can—and has—passed the tests against bias before that wave hits.
Though AI can save time, it’s clear it can never replace the human touch. Humans are so much more than words on a piece of paper screened electronically. Sometimes it takes a little time and effort—and luck—to find the perfect person for the role. I’d like to see all candidates get a fair chance at jobs with eliminating bias—particularly the bias against the unemployed. What a great world that would be.
Big changes to the law in Texas on sexual harassment become effective on September 1, 2021. These new changes have gotten surprisingly little publicity but make it easier to pursue a sexual harassment case in Texas.
The changes are in a new subchapter to Texas Labor Code Chapter 21 addressing only sexual harassment claims.
First, in the past, laws that protected people from sexual harassment only applied to companies with 15 or more employees for at least 20 weeks of a year. So, for people who worked for small companies, there was no real and effective protection from sexual harassment.
Second, the harasser usually could not be sued individually under Title VII or Texas Labor Code Chapter 21 for sexual harassment. The harasser might be sued for assault when there was unwelcome touching. However, if there was no assault involved, the harasser typically could not be sued individually.
Finally, under Texas law, the period to file a sexual harassment charge was a short 180 days.
That all just changed in Texas.
Under this new law, an “employer” means a person who employs one or more employees. It also can mean a person who “acts directly in the interests of an employer in relation to an employee.”
This fills a gap for employees in small companies. Now, anyone who works for a company with just one employee has protection from sexual harassment.
The biggest change is that the harasser may be considered an “employer” under the law if the harasser acts directly in the interests of an employer in relation to an employee. With this definition, if there is a coworker harassing his or her peer, that coworker really won’t fit in the definition of “employer.” However, if a boss is harassing a subordinate, there is a good chance the boss can now be sued individually. That is a new and very big change to Texas law.
Finally, the deadline to file a charge of discrimination in Texas for sexual harassment has now been increased to 300 days. That gives victims a little bit more time to decide whether to pursue a claim for sexual harassment or not.
This increased deadline from 180 days to 300 days only applies to sexual harassment. All other types of discrimination claims under Texas law are still subject to the normal 180-day deadline.
These changes are huge. Given that the Texas legislature has lagged far behind in changing its laws to protect women on equal pay issues, it is great to see the Texas legislature get out in front on sexual harassment.
Even though these changes are not effective until September 1, 2021, expect to see the number of sexual harassment claims increase. For the victims who fell between the cracks in the law before, this is a very welcome change. For the people who harass employees and who now fall within the definition of “employer” and can be sued individually now, this will be a very unwelcome change.