VMM partner Avrohom Gefen was interviewed in Bloomberg Law yesterday about the new anti-sexual harassment laws in Texas and what can be expected in other states and on the federal level.
The article can be read here and copied below.
Sept. 2, 2021, 3:15 PM
New Texas laws aimed at tamping down sexual harassment in the workplace outstrip federal protections for victims, signaling a potential outlier for #MeToo legislation’s reach in a red state.
Laws that took effect in Texas on Sept. 1 lower the statute of limitations for filing sexual harassment changes, expand who can file suits, and broaden liability to individual managers. The measures—some of the strongest protections in the country for workplace harassment lawsuits—quietly became law as the conservative bastion enacted one of the strictest abortion curbs in the country.
Texas isn’t alone in pushing for measures that would tamp down on sexual harassment in the wake of the #MeToo movement, but conservative states have been slower to push for change. In recent years, state lawmakers—led by New York and California— have proposed laws.
“Texas is probably a bellwether for more red states adopting these types of laws,” said Avrohom Gefen, partner at Vishnick McGovern Milizio. “The #MeToo movement has almost become a state legislative movement. It’s now not necessarily in the bounds of blue or red.”
Employment attorneys predicted a new wave of litigation in the state, prompting smaller businesses that never had to fear a sexual harassment lawsuit to update their policies. Removing barriers to filing sexual harassment lawsuits is a “common sense” way to give more people rights, Gefen said.
Several states have considered extending the statute of limitations or changing the employer-size threshold, including one proposal pending in New Jersey. During the Covid-19 pandemic, however, there appeared to be a slowdown in #MeToo-style litigation and some proposed legislative measures didn’t make it through this year.
Virginia considered extending its statute of limitations; Georgia considered legislation to do that too and lower the employer-size threshold; Maryland considered a bill that would have disavowed the federal court “severe or pervasive” needed to sustain a claim for hostile work environment. But none of those measures became law.
“Texas isn’t usually one of the states that does more than what’s required to protect employees,” said Emily Harbison, labor and employment partner at Reed Smith LLP in Houston. “It’s important for employers to know what the changes are.”
The laws can be a hurdle for small businesses, in particular, that will have new liability “practically overnight,” said Mike Eastman, an NT Lakis partner and assistant general counsel for the Center for Workplace Compliance.
“Many will not have appropriate policies or practices in place and they will need to act swiftly to minimize possible legal risk,” Eastman said. “There are some unknowns here, but the bottom line is for companies to continue to maintain effective anti-harassment policies and procedures.”
Other State Action
Other states did pass laws related to harassment, according to a Bloomberg Law review, although the pace of doing so slowed down when compared to the years immediately following the onset of the #MeToo movement in 2018.
These laws include a New Mexico measure that bans non-disclosure provisions of agreements to settle sexual harassment, discrimination, or retaliation claims. Hawaii also prohibited non-disclosure agreements in sexual harassment cases.
California amended its existing settlement agreement law to bar clauses that would prevent an aggrieved person who filed a harassment claim from getting hired in the future. It also increased requirements for sexual harassment training.
A new Nevada law says that settlement agreements are void and unenforceable is they prevent a party from testifying on sexual harassment, discrimination, or retaliation.
Ohio, however, passed a law that reduced the statute of limitation from six to two years, and established that an employer may raise an affirmative defense to sexual harassment claims by showing it exercised reasonable care to prevent sexual harassment and the employee failed to use any preventive or corrective opportunities offered by the employer.
“We are seeing more states wanting to implement these #MeToo workplace reforms,” said Samone Ijoma, a fellow for education and workplace justice at the National Women’s Law Center. “It’s crucial and critical for states to make these types of advancement in harassment laws. The laws in most states have historically been very employer friendly.”
Back in Texas, three new laws that took effect on Sept. 1—S.B. 45, H.B. 21 and S.B. 282—expanded liability for sexual harassment to individual managers as well as business with more than one worker, and increased the time to file a charge to be in line with federal law. The changes also say that managers should be required to take “immediate and appropriate corrective action” to address sexual harassment.
That goes beyond Federal law under Title VII of the 1964 Civil Rights Act, which only protects against sex discrimination for employers with more than 15 employees, and for which the statute of limitations for filing a complaint is 300 days. Workers’ groups that have pushed for state reforms say these are barriers for people who claim harassment in the workplace.
“The employees we represent are more likely to seek help when they know the system has mechanisms in place to protect them,” said Texas Sen. Judith Zaffirini (D-Laredo), who authored two of the harassment bills. She said that the expansion of protections to all employers is the first time the state expanded its labor code beyond federal minimum requirements.
It’s a departure from what many conservative states have done, said Kimberly Moore, member of Clark Hill PLC in Collin County, Texas. She said that the law that now allows workers to sue individual managers will increase litigation.
“That is going to happen very frequently, to see these lawsuits in state court and they’ll remain in state court,” Moore said.
Small businesses in Texas will have to revise their handbooks to ensure their sexual harassment policies are in compliance, said Reed Smith’s Harbison, adding that companies won’t likely oppose protecting victims of sexual harassment, and the changes won’t be too onerous for businesses. “It will be hard to find people who disagree with the reasoning behind it.”
And there may be an uptick in litigation.
“Any time you have a new law, that’s a signal to plaintiffs attorneys,” Harbison said. “It gives them more fodder. Some will take it as a green light to see how to press these issues.”
It makes good business sense to make sure that employees aren’t sexually harassed, said Kate Mueting, co-chair of the discrimination and harassment practice group at Sanford Heisler Sharp LLP, in Washington.
“My hope would be that instead of litigation that we would think about it as employers taking more concerted steps to protect their employees,” Mueting said.