Category Archives: Sexual Harassment

Texas Employer’s New Year’s Resolutions for 2022

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The time between Christmas and New Year’s Day is a good time for employers to reflect on resolutions for 2022. What can you as an employer do in the new year to make your job easier, be a better employer and avoid legal landmines peppering the workplace landscape?

After more than 30 years of advising companies on employment law issues and as a small business owner myself, I have an awareness of and empathy towards the challenges that you are facing. But sometimes we just have to bite the bullet and make some difficult changes. So here are some suggestions of changes you either have to or should consider making in 2022 because of recent changes to the law or the employment arena.

Prepare for the Vaccine Mandate or Testing Policy (for Employers of 100 or more)

Yep, its back. On Friday, December 17, the Sixth Circuit Court of Appeals lifted the injunction on OSHA’s vaccine or testing mandate. That means that employers with 100 or more employees (“large employers”) are once again required to comply with OSHA Emergency Temporary Standard (“ETS”) that puts employers in the position of either requiring employees to get vaccinated or to undergo weekly testing.

In examining the reasons that OSHA argued in favor of enforcing the ETS, the Sixth Circuit ruled, “It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.” The Sixth Circuit found that the mandate was both constitutional and that OSHA was acting within its statutory authority to enforce occupational health and safety in implementing the mandate.

I’ve already provided an explanation of what the ETS requires of large employers. What has changed since November 4 when I wrote that post is that OSHA has extended the deadlines, but not by much. Here are the current deadlines with which OSHA expects large employers to comply:

  • January 10, 2022:
    • Large employers must require unvaccinated employees to wear masks when indoors in the workplace or when travelling in vehicles with coworkers.
    • Large employers must have a written policy in place notifying employees of their obligation to get vaccinated or undergo weekly supervised COVID-19 testing (not at-home testing).
    • Large employers should have documented each employee’s vaccination status and started accepting paperwork for religious and medical exemptions (which means those employees won’t have to be vaccinated but will have to be tested weekly).
  • February 9, 2022:
    • Employers must start testing unvaccinated employees weekly.
    • OSHA will start enforcing the ETS.

In addition to meeting these deadlines, as a large employer, you still have significant obligations regarding daily recordkeeping, notices to employees, onsite testing and paid time off for vaccines and vaccine side effects, all outlined in the original ETS.  And meeting those obligations by the new deadlines means you are going to be busy for the next few weeks.

The Sixth Circuit’s ruling, which is effective nationwide, has already been appealed to the U.S. Supreme Court. There is still a chance that this ETS will not take effect. However, the Supreme Court has consistently upheld every COVID vaccine mandate with which it has been presented over the last year. The most recent occurrence was on Monday, December 13, when a 6-3 court (conservatives Kavanaugh, Barrett and Roberts voted with the three liberal justices) upheld New York State’s requirement that all health care workers there have to be vaccinated, even though religious exemptions will not even be considered for employees doing direct patient care. In other words, the U.S. Supreme Court refused to overturn a much more uncompromising mandate just last week.

Get Serious About Preventing Sexual Harassment

As of September 1, 2021, Texas now has one of the strictest laws in the country prohibiting sexual harassment. Instead of only affecting employers with at least 15 employees like every other federal and state discrimination law, Texas’ new sexual harassment law not only makes employers with just one employee liable, but also for the first time allows harassed employees to sue supervisors and managers (and company owners) individually for sexual harassment along with the company.

To protect your business, at a bare minimum, you must have a written policy prohibiting sexual harassment in your employee manual. In that policy, you must name a person to whom employees should report the harassment who will take the complaint seriously and get an investigation performed.

Continue reading Texas Employer’s New Year’s Resolutions for 2022 →

Small Texas Employers Newly Liable for Sexual Harassment

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Texas employers who have less than 15 employees are no longer protected from sexual harassment claims under the small employer exception. Senate Bill 45, signed by Governor Abbott on May 30, 2021, changes the standard definition of employer in the Labor Code for sexual harassment complaints from “employs fifteen or more employees” to “employs one or more employees”.

This is a major change for small businesses in Texas. It overturns a long-time affirmative defense that many small businesses have relied on to avoid litigation without really worrying about improving their behavior.

New Texas Sexual Harassment Law

Both the federal discrimination law, Title VII, and the Texas discrimination law, Labor Code chapter 21, have excepted small business from any liability for employment actions taken in whole or in part on the basis of sex, religion, age, disability, etc. While the 15-employees or more exception still applies to all of those other categories for the time being, preventing sexual harassment has received a new treatment by the Texas Legislature and, as of September 1, applies to every Texas employer, regardless of employee headcount.

In addition, Governor Abbott signed a companion bill, House Bill 21, on June 7, 2021, that extends the time for filing a sexual harassment claim under §21.141 from 180 days to 300 days after the last harassing act occurred. So now, any Texas employee claiming that they have been sexually harassed in any workplace will have ten months instead of six months to complain to the Texas Workforce Commission’s Civil Rights Division.

“Sex” includes Sexual Orientation and Gender Identity

Here is an interesting twist to this legislation. Last year, the U.S. Supreme Court ruled that the word “sex” in Title VII’s discrimination prohibitions includes sexual orientation and gender identity. Bostock v. Clayton County, 590 U.S. __ (2020). Recently, a Texas Court of Appeals addressed the issue of whether Bostock applies to Texas Labor Code Chapter 21, which bans discrimination in Texas “because of sex.” Tarrant Cnty Coll. Dist. v. Sims, No. 05-20-00351-CV (Tex. App—Dallas, Mar. 10, 2021).

The state appeals court in Dallas held that, in light of the U.S. Supreme Court’s decision in Bostock, they were compelled to read Chapter 21’s ban on sex discrimination “as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.” It is no stretch to apply the Dallas court’s reasoning to sexual harassment, which is just a type of sex discrimination.

Small Businesses Need New Policies

With that background, even the smallest Texas businesses need to make sure they are not allowing any employee or customer to harass another coworker based on that coworker’s sex, sexual orientation or gender identity. While some courts may rule down the road that is not what the Texas Legislature meant to do in its ultra-conservative 2021 legislative session, you do not want your small business to be the test case on Texas’ new sexual harassment law.

Most small employers do not even have Equal Employment Opportunity language or Sexual Harassment policies in their employee policy manuals. That will have to change before September 1, 2021, when SB 45 goes into effect as Tex. Labor Code §21.141.

The new law only applies to harassment in a small business that occurs after September 1, 2021, so if you are a small business owner, now is the time to clean up your employees’ language and offensive behavior (and your own, if any). 

There are other preventative steps every Texas employer needs to take besides just adding a written policy.

Continue reading Small Texas Employers Newly Liable for Sexual Harassment →

Five Steps for Responding Well to Harassment Claims

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Two nooses hanging near a loading dock and racist graffiti on a company truck designed to be seen by the company’s African-American employees will almost certainly lead to an expensive racial harassment lawsuit against a business, but the federal Fifth Circuit Court of Appeals recently sided with an employer who promptly took five comprehensive steps in response to this reprehensible conduct.

In its June 2018 opinion, the Court held that YRC, the employer, responded appropriately to these incidents at its Irving, Texas facility. The opinion gives all employers helpful guidance on how to combat harassment in the workplace. Tolliver v. YRC, Inc. (5th Cir. 2018).

It is important to note that the Court acknowledged that the racist actions were “morally unacceptable” and “reprehensible. But the plaintiffs didn’t allege that the acts were directed specifically toward them and “for the most part, learned about the acts secondhand”. So, the Fifth Circuit did not find that this conduct was sufficiently severe or pervasive enough to change the terms or conditions of employment as to these particular employees, meaning that their personal racial harassment claims weren’t strong to begin with.

But what really mattered to the Court is that the employer took prompt remedial action to protect all employees after these horrifying incidents occurred. The steps YRC followed offer guidance for all employers facing any kind of harassment situation, whether involving racial harassment, sexual harassment, ethnic harassment, etc.

Let’s call these the Five Steps to Responding Well to a Harassment Claim: Continue reading Five Steps for Responding Well to Harassment Claims →

Five Tips for Hiring Teenagers

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Summer is coming, and you may be thinking about employing some teenagers. Here’s some lawyerly advice: proceed with caution. Employing teens requires you as an employer to foresee potential problems and correct them very early.

Here are five tips for hiring teens:

1. Safety: You have to be much more safety-conscious when you employ teens. In 2014, workers ages 15-19 had more than twice as many injuries that sent them to the emergency room than employees over age 25.

Your company has a legal duty, according to OSHA, to provide a safe working environment for all employees, which means you need to engage in extensive safety training with new teen employees. Cover the most common workplace hazards and injuries such as slips, trips and falls, chemical exposure, burns and cuts, eye injuries, machinery malfunctions, and strains and sprains, as well as any known hazards specific to your workplace.

Remember that teenagers are often uncomfortable acknowledging their ignorance or inexperience, so they may not ask questions that would indicate that they don’t clearly comprehend your training or instructions. They also may not learn without extensive repetition of the rules. Don’t assume that stating a safety rule one time is going to sufficiently train a teen worker.

2. Sexual Harassment: Many recent Equal Employment Opportunity Commission enforcement actions have shown that teenagers are very vulnerable when it comes to sexual harassment. They need as much if not more training than your more mature employees in how to recognize, prevent and report harassment, even if the job is not considered long term for that teen. Continue reading Five Tips for Hiring Teenagers →

Hook Ups and Break Ups in the Workplace

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More than one-third of American employees have dated a coworker, according to Harris Polls’ latest annual survey for Career Builder, so as an employer, you are going to be inevitably faced with the problems that coworker hook ups and break ups can cause in your workplace.

In the beginning of a workplace romance, it is important for employers to find out about the relationship and set the ground rules before things get messy. You can adopt a written policy that requires employees to notify the company when they “start dating”, although defining that is pretty difficult. Nowadays, does “dating’ mean they’ve had the first date, the second hook up, or just that one of them has changed his or her relationship status on Facebook?

Some employees are not going to readily tell you that a relationship has started. The Career Builder survey shows that 25% of the relationships at work involved a married coworker. So those people will probably stay quiet. However, the study also showed that 37% of employees thought they had to keep their office romance a secret at work.

As the employer, you can’t stay in the dark, so you need to assure your employees that you have to know and that you will work with them to help everyone adjust to the new coworker relationship.

Once you know about the new couple, you have to communicate your expectations to them. You can do this by written policy, a specific “love contract” that the new couple signs, or by verbal coaching, although something in writing is always preferred by your employment lawyer.

You have to address the end of the relationship in the beginning. While about 31% of workplace romances lead to marriage, the Career Builder survey says, that leaves 69% that result in a break up and the bitterness that a soured romance can cause in your workplace. Break ups can even cause good employees to leave your company (6% leave, according to that study).

Anticipating that greater than two-thirds of the dating relationships between your employees will eventually end, what are the necessary ground rules of hook ups and break ups that an employer should impose? Continue reading Hook Ups and Break Ups in the Workplace →

Sexual Harassment Focus Should Prompt Employer Vigilance

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To no one’s surprise, my life as an employment lawyer for the last two months has focused primarily on one issue—sexual harassment. I have conducted several investigations and advised numerous employers on this issue recently because the national news and the #MeToo movement have had a direct impact on employers in the Texas Panhandle area, including some of my smaller employers.

Female employees nationwide and locally obviously feel freshly empowered to say something about any mistreatment and to expect that their complaints will be seriously addressed. As Oprah Winfrey predicted at the Golden Globes awards ceremony, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up.”

While the recent sexual harassment focus is inspiring to many women as a political call to arms, business owners and human resources directors are trying figure out how to hear and handle the resulting complaints with compassion, but also with practicality. That’s where your employment lawyer can help.

Any claim of sexual harassment is what we employment lawyers consider an emergency for your company. When an employee alerts you to a problem, you have to spring into action immediately to make the complainant safe, undertake a thorough and impartial investigation of the claim and finally, resolve the matter with the appropriate discipline. At that point, it is too late to improve upon your written policy or regret a bawdy joke that you recently told.

If you are a business owner or manager in a company with at least 15 names on the payroll, you would be wise to expect to face a sexual harassment complaint sometime in the near future, and to take these six steps now to lessen the sting of such a complaint: Continue reading Sexual Harassment Focus Should Prompt Employer Vigilance →