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Texas Employers’ Duty to Prevent and Investigate Sexual Harassment

On behalf of Stephen C. Key

Two kinds of sexual harassment are illegal in the workplace.

Sexual harassment in employment is illegal as a form of sex discrimination under both Title VII of the Civil Rights Act on the federal level and the Texas Commission on Human Rights Act on the state level. Employer responsibilities to prevent harassment, investigate complaints and respond appropriately to protect employees are significant and sometimes despite the best of intentions, an employer may find itself the object of a legal complaint of sexual harassment.

Broadly, sexual harassment occurs in two kinds of situations. First, in so-called quid-pro-quo harassment, a job applicant or employee is asked to grant sexual favors as a condition to being hired or receiving positive employment action like a raise or perk or to prevent negative employment action such as a demotion.

Hostile work environment is the other type of sexual harassment in which behavior of a sexual nature in the workplace interferes with work performance or creates an environment that is hostile, intimidating or offensive. Isolated, minor incidents do not constitute a hostile work environment; the behavior must be either serious or ongoing. Examples of the kinds of behaviors that can constitute sexual harassment include:

  • Unwanted touching
  • Physical blocking or placing the body inappropriately close to the victim
  • Display of pornography
  • Suggestive messages or notes
  • Stalking, including repetitively asking for dates or sexual favors
  • Crude comments or humor
  • And more

Illegal harassment can be done by male or female supervisors, co-employees, employers' agents and others in the workplace like contractors, customers, clients and service providers. Harassment can be against persons of the same or opposite gender.

Consulting experienced legal counsel early on to understand this complicated area of law and for advice about compliance can be critical, not only to set up a workplace that is safe for all employees, but also to understand the corresponding legal duties and prevent liability. An attorney who regularly represents employers in discrimination and harassment issues will provide initial and ongoing guidance and advice in this area.

The lawyer will help the employer-client develop training material, manuals and internal policy regarding sexual harassment protection as well as rigorous orientation and education for supervisory and managerial staff. This is especially important because an employer can become liable for sexually harassing behavior of its supervisors in some situations.

Equally important is to establish an internal complaint procedure in such a way that employees feel comfortable reporting suspected sexual harassment to management and know exactly what they should do.

Legal guidance is also important when an employer must investigate a sexual harassment complaint and possibly take corrective action that could include termination of a perpetrator. Employers must also take care not to illegally retaliate in any way toward a reporting employee or against one who cooperates in an investigation or provides testimony in a related lawsuit.

Advising employers about sexual harassment and other kinds of discrimination, the attorneys at Key Barrington Barnes , P.C., in Dallas represent employers in the Dallas-Fort Worth region, statewide and nationally.

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