As of September 1, 2021, this article is out of date. The information below is more updated:
As of September 1, 2021, if your Texas company has one or more employees, it is subject to new sexual harassment laws.
Learn more here:
New Standard for Employers
Liability for sexual harassment under the law occurs when (1) the employer’s agents or supervisors know or should know of sexually harassing conduct and (2) fails to take immediate and appropriate corrective action. This new standard applies to almost every employer in Texas and requires an employer to respond immediately and purposefully to employee sexual harassment complaints.
Individuals May Be Held Personally Liable
Individual supervisors, or even HR representatives, may arguably be held personally liable for sexual harassment for their failure to take immediate and appropriate corrective action if they know or should know of the sexually harassing conduct. This is because the definition of employer for purposes of this section now includes a person who “acts directly in the interests of an employer in relation to an employee.”
Straightforward Compliance
Treaty Oak ELG can help! We can review your sexual harassment policy for compliance with new laws. Under these new laws, employer policies should clearly provide mechanisms for reporting complaints and set forth in no uncertain terms that retaliation for making a good-faith report is impermissible and will not be tolerated.
A policy for reporting harassment is the first line of defense for employers against liability for discrimination and harassment. It’s also a first line of defense for employees against harassment. Put simply, a policy that sets forth a clear procedure for submitting complaints of sexual harassment (or other potentially unlawful behavior) – and acknowledges that the company will take prompt remedial action – should be a priority.
We can also train your executives, managers, and supervisors to recognize incidents of sexual harassment, and learn when and how to report. Many executives have a hard time identifying when a complaint should be brought to HR or legal and may try to resolve issues on their own. Our training focuses on real-life examples to help demonstrate to management how and when to document issues in writing and when to ask for help in addressing personnel issues.
If you work in a management position, you may have at one point or another wondered about personal liability for workplace claims of discrimination or harassment. Typically, aggrieved and disgruntled employees direct their complaints against the company and against individual transgressors within the company. However, as a part of the management of a business, it is natural to be worried about whether, and in what circumstances, a claim could be made against management personnel for the problems between coworkers.
Any employee committing a tortious act against a fellow employee without an adequate legal defense can be personally liable under Texas tort law.
A tort is a bad or illegal act that leads to civil liability. In Texas, as in other states, individuals are held personally liable for their tortious actions even when such actions are purportedly done in the course of their employment. For example, a bouncer who is overly rough with a patron may find himself liable personally for assault and battery, in addition to the liability of his employer. And, while an employer can be sued for failing to provide a safe workplace free of harassment, the person committing harassment can be liable personally for torts such as defamation and intentional infliction of emotional distress. An employee who sexually harasses or physically intimidates a coworker might open themselves up to civil liability for the torts of assault and battery. The liability of an employer does not preclude simultaneous individual liability for the person who has committed the acts that form the basis of the claim(s).
It is difficult to hold the manager of an abusive employee personally liable for that employee’s tortious actions toward another employee, unless the manager has contributed to the behavior.
Fortunately for those in management positions, absent a special relationship, such as parent or guardian, individuals are generally not liable for the tortious actions of other individuals. It would be difficult to sue a manager or direct supervisor in an individual capacity for the tortious actions of someone they supervise. Their responsibility for an employee’s behavior is only the responsibility of the company-employer through which they hold their position. Therefore, while it is possible to sue an employer, it is difficult to sue managers and supervisors individually unless they are the actual perpetrators of tortious actions. Their individual actions in the workplace are still governed by Texas tort law. For instance, if a manager’s negligence contributes to an opportunity for an employee to commit a tort against a fellow employee, it could be possible to hold that manager liable in an individual capacity for negligence. However, situations such as these are relatively rare in employment cases.
Individual managers do not have liability for the discriminatory employment practices that constitute a hostile work environment claim.
In Texas, what is generally referred to as a “hostile work environment” claim must be based upon a tortious or statutory claim of illegal discrimination or other illegal behavior in the workplace. The entity responsible for preventing such an environment, and suppressing bad behavior at a workplace, is the employer itself. Managers do not generally have any individual liability unless their behavior rises to a tortious level, in which case they are liable for their own tortious acts. When an employee makes a hostile work environment claim under Title VII of the Civil Rights Act of 1964, the claim must be made against an employer, since the statute specifically prohibits employer discrimination in the workplace. A manager acting in their role as an employee of the company is creating liability for the company, but generally not for the individual.
Cite this article: Lynch, N. (2017). Personal Liability for Workplace Claims. Available: https://treatyoaklegal.com/blog/personal-liability-for-workplace-claims/
