by Alicia Sienne Voltmer
Included in the 666 new laws that went into effect in Texas yesterday was a little-publicized but important set of amendments to the Texas Commission on Human Rights Act (TCHRA), the state version of Title VII of the Civil Rights Act, which protects individuals from discrimination, harassment, and retaliation based on their protected characteristics, including age, sex, race, national origin, color, disability, and religion.
Here are the highlights:
- All Texas employers are now subject to the TCHRA with respect to sexual harassment claims.
Prior to the amendments, the TCHRA only applied to employers with 15 or more employees. Now, and with respect to sex harassment claims, employers with 1 employee are subject to liability for sex harassment. This change makes the law in Texas stronger than Title VII with respect to sex harassment claims.
Liability for sexual harassment is now extended to individual managers and/or supervisors.
Pre-amendment and consistent with Title VII, the TCHRA did not allow claims for sex harassment against individual managers or supervisors. Now, an employee can sue both the employer and his or her supervisor and/or manager, individually, for sex harassment. This change also makes the state law in Texas stronger than federal law in Texas on this issue.
The new sexual harassment standard creates uncertainty.
Included in the revised statute is new language that defines an “unlawful employment practice” as one in which the employer, the employer’s agent, or supervisors: (a) know or should have known that the conduct constituting sexual harassment was occurring; and (b) fail to take “immediate and appropriate corrective action.” The phrase, “immediate and appropriate corrective action” is undefined and could be left to juries to decide.
Employees have more time to file a charge of discrimination for sexual harassment.
Employees alleging sex harassment will now have 300 days, instead of 180 days, to file a claim with the Texas Workforce Commission.
How can all restaurateurs prepare for what is sure to be a new wave of sex harassment claims by employees? Here are some best practices, regardless of workforce size:
Implement a comprehensive, written anti-harassment policy.
Roll out a written anti-harassment policy, which should also address discrimination and retaliation, and require every employee to read and acknowledge it in writing. If you are an employer with 15 or more employees, update your handbook policies related to harassment and require all employees to re-acknowledge the changes.
Conduct yearly training on your anti-harassment policy.
Educate and re-educate your employees at all levels on the policy, make attendance at training sessions mandatory (and remember you will need to pay for training time for non-exempt employees when training is mandatory), and require all employees to sign and date a training attendance sheet.
Train supervisors and managers regarding their obligations to identify potential issues.
Managers and supervisors should also receive separate training regarding how to document and handle employee complaints of sex harassment, and should understand their obligations to work with Human Resources where applicable.
Update your job descriptions.
Accurate, written job descriptions serve a number of useful purposes for employers. If you use them, consider updating those related to supervisory/management positions to identify timely and efficiently handling complaints of sex harassment as an essential job function.
Consult your insurance broker.
If you carry Employment Practices Liability Insurance or have other coverage that could apply to sexual harassment claims, consult your broker about whether claims against your individual managers and/or supervisors are covered under your policy.
Ensure you create/maintain accurate documentation of complaints.
Two common mistakes by managers are the failure to document oral complaints of sexually harassing behavior and the tendency to ignore complaints by employees who frequently “cry wolf.” All complaints of sexually harassing behavior should be accurately documented in writing, dated, and maintained for future use, if necessary.
Consider working with outside counsel to assist with sexual harassment investigations.
Whether you function with or without a Human Resources department, consider hiring outside counsel to guide you through the steps of an effective investigation. Such assistance can help you avoid common mistakes, provide unbiased feedback, assist with determining disciplinary action, if any, and ensure you have thorough documentation to establish you took “immediate and appropriate” corrective action.
Source: Greenberg Traurig, LLP