'Loophole' in state sexual harassment policy could be closed with bill

A bill making its rounds through the state Capitol in Austin could eliminate a loophole that some say unfairly protects employers from sexual harassment lawsuits.

“Victims of workplace sexual harassment in Texas, particularly those who work for small employers, face very significant obstacles to justice,” Sen. Judith Zaffirini, D-Austin, said in an email. “For example, the Texas Labor Code does not specifically name ‘sexual harassment’ among its ‘unlawful employment practices,’ except with respect to unpaid interns. What's more, the code applies only to employers with 15 or more employees. It is absurd that someone should be able to engage in sexual harassment with impunity simply because the number of employees he or she supervises is 14 or fewer.”

Karen Wyatt was working in San Marcos and said she had grown accustomed to sexual harassment by her employer, to the point that she “attributed it to little-man syndrome.”

A friend discovered the depth of verbal abuse she was being subjected to and demanded that she quit her job. She followed that advice and soon filed an unemployment claim, which was blocked by her previous employer because she had quit of her own volition.

She decided to file a sexual harassment claim against her former employer, and that is when she found out about what she calls “the loophole” that protects small business employers from harassment claims.

Under federal law, employees working for an organization with fewer than 15 employees cannot file a sexual harassment claim against their employer. States are free to ease that restriction by lowering the number of employees necessary before a claim can be filed, but Texas, as is the case in nearly a dozen other states, has stuck with the federal law, according to Workplace Fairness, a workers’ rights advocacy group.

“I was shocked, and I was angry,” Wyatt said about her discovery of the loophole. “It comes down to, how is it 2016 and this has not been dealt with? I have had so many people reach out to me who have said this has happened to them. I’ve had so many.”

In researching the history of the 15-employee minimum for sexual harassment claims, representatives from Zaffirini’s office said they had not found a specific reason for the number, except perhaps to prevent a heavy backlog of sexual harassment cases at the federal level.

Wyatt said the number appeared to be “just pulled out of the air.”

SB 1140 would end that loophole by giving employees of a company of any size—regardless of the number of people employed by the company—the right to file a harassment claim.

“This bill would address the problem by providing that sexual harassment against a paid employee is an unlawful employment practice and would apply that provision to all employers, regardless of the number of employees,” Zaffirini said.

The bill was referred to the State Affairs Committee on March 7.

Wyatt said she is not content to stop at a statewide rule change.

“Texas is stop No. 1, but most definitely it needs to be changed at the federal level,” she said.

To receive email updates on SB 1140 or other bills throughout the 85th Legislative Session, create an account with Texas Legislature Online. For more information on Wyatt and the sexual harassment legislation, visit her website