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.
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.
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.
There is an art to making a persuasive complaint. As an employee, if you need to file a complaint with your employer, keep in mind the things you should and should not do.
Focus on the goal of your complaint. Your goal should be to make sure your employer can quickly review your complaint, understand what you are complaining about, know how to begin its investigation and know what an ideal resolution would look like to you.
To accomplish this goal, do the following:
- Make it factual. Remove all emotion from your recitation of events.
- Make it short and succinct. Give the “30,000 view” of events and do not dwell too deeply in the details. There will be time to get into the details later. You need the employer to be able to immediately understand the basis of your complaint.
- Make it chronological. Tell your story in chronological order. It makes it so much easier for the person reading your complaint to follow through what happened if you do not bounce back and forth.
- Make it specific. Use specific names and job titles, not just job titles when you refer to people. Do not use abbreviations. You cannot assume the person reading your complaint knows what those abbreviations stand for. Give specific dates of incidents when possible. Give specific example of incidents. Instead of using general language such as “I was harassed,” say something like “On April 25, he grabbed me in the hall and leaned down and kissed my neck in front of two of my co-workers.” Specific details will always be far more persuasive than general allegations.
- Make sure to use legal buzz words. If you think you have been discriminated against because of your race, say so. If you think you are being sexually harassed, say so. If you think you are being paid less because you are a woman, say so. Too many people dance around using the words “discrimination” or “retaliation” because of a fear of retaliation. Paradoxically, it is in using those specific words that you actually get the most protection from retaliation.
- Make sure to consider who will receive the complaint. Certainly, Human Resources should receive your complaint. However, you may consider also sending a copy directly to the person about whom you are complaining. This can be tricky. However, it is often important to show that the wrongdoer knew of your complaint if you are later retaliated against. While the fear of retaliation is real, paradoxically, sending a copy directly to the person you are complaining about can actually get you more protection from retaliation.
- Make sure to consider getting help. Finally, do not be afraid to get help. As a lawyer who represents individuals in employment disputes, I can walk you through the process of filing an internal complaint. I can even draft it for you. Or, I can draft a letter to go straight to your company’s legal department to set out your complaint.
You do not have to go it alone. If you feel like you are in a challenging situation at work and need some advice, we can help.