Texas is many things, and one of those things is friendly to employers – often to the detriment of employees. Nevertheless, according to the Society for Human Resource Management (SHRM), the governor recently signed two new bills under the Texas Labor Code that expand employee protections for those claiming sexual harassment.
The New Bills
The two new bills are Senate Bill 45, which relates to the prohibition against sexual harassment at work, and House Bill 21, which relates to the statute of limitations involved. These bills expand the statute of limitations for bringing claims and include a more expansive legal definition of who qualifies as an employer in the context of sexual harassment. Additionally, the bills heighten the potential that the following will bear individual legal liability:
Business owners
Human resources professionals
Supervisors
Other employees
Further, employers are now held to a higher standard for responding to complaints related to sexual harassment. This tightening of the law applies only to sexual harassment and not to those claims that are predicated on other protected characteristics.
Employer
Prior to the new bill, employees throughout the State of Texas could only bring harassment claims (based on protected characteristics, such as sexual harassment) against an employer if he or she employed at least 15 people. For the purposes of sexual harassment claims, this definition has been altered to include employers who employ as few as one person. In other words, virtually every employee in Texas is protected under the new bill – and virtually every employer can be held accountable.
Individual Liability
The new bills also expand personal liability. Now, for the purposes of sexual harassment claims, the term employer encompasses anyone who acts directly in the interests of an employer in relation to an employee. This means that managers, supervisors, HR professionals, third parties, and other employees can be individually named in an employee's sexual harassment claims and can be held personally responsible for any ensuing damages. Prior to the emergence of the new bill, individual liability was not addressed.
Statute of Limitations
Formerly, an employee with a sexual harassment claim was required to file the charge with the Texas Workforce Commission within 180 days of the precipitating event. With the new bill, any complaint that is predicated on an event that happened after the start date (September 1), employees have 300 days to file.
Sexual Harassment
In Texas, sexual harassment is addressed by the Texas Workforce Commission (TWC), which defines sexual harassment as unwelcome advances, requests for sexual favors, or physical touching of a sexual nature. If the harassing behavior interferes with the harassed employee’s ability to perform his or her job or if it creates a hostile, offensive, or intimidating work environment, it may rise to the level of sexual harassment on the job. It is important to note that the perpetrator of the sexual harassment can be a male or female, and there is no requirement that members of the opposite sex be involved. Additionally, anyone affected by the sexual harassment – even if the person was not its target – can claim sexual harassment. Those victimized by sexual harassment at work can file their claims with the Texas Workforce Commission’s Civil Rights Division or with the federal Equal Employment Opportunity Commission (EEOC). These are civil complaints, but sometimes, sexual harassment charges cross the line into criminal charges.
When Sexual Harassment Becomes a Crime
Yes, sexual harassment in the workplace is illegal, but you may be wondering when sexual harassment becomes a criminal – rather than a civil complaint. This happens when workplace discrimination crosses a specific line – and the act or actions are reported to the police or to another law enforcement agency. There are several criminal charges that can pertain.
Assault
When someone touches a coworker inappropriately with the intention of causing offense, it can lead to charges of a Class C misdemeanor assault, which carries fines of up to $500 (but no jail time). However, if the assault charge involves touch that causes one’s coworker pain, the charge is elevated to a Class A misdemeanor, which carries up to one year in jail and fines of up to $4,000.
Criminal Harassment
When a coworker is persistent in his or her efforts to harass, annoy, alarm, abuse, torment, or embarrass a workmate, including by making sexual advances, by texting, or by calling, it can lead to charges of criminal harassment, which is a Class B misdemeanor that can carry up to 6 months in jail and fines of up to $2,000.
Sexual Assault
When the sexual harassment in question is extreme in nature, it can lead to sexual assault charges. Sexual assault includes acts that go so far as penetrating the victim without his or her consent, and a conviction can carry 2 to 20 years in prison and fines of up to $10,000.
Collateral Consequences of a Conviction
According to the National Criminal Justice Reference Service (NCJRS), the collateral consequences of a criminal conviction (whether or not the person spends any time behind bars) amount to profound legal disabilities that are imposed by both the legal system and society at large. The consequences in question create both economic and social challenges that can make reentry into society after a conviction exceptionally challenging. These collateral consequences tend to limit the benefits (that are typically bestowed on Americans) for those convicted of crimes, and they can affect all the following:
Welfare
Housing
Adoptions
Employment
Immigration
Professional licensure
Property rights
Mobility
Gun ownership
The overall effects of these consequences can impact recidivism and can have lingering effects that make achieving a full reentry as a welcome member of society exceptionally difficult. One of the most damaging aspects of this suite of consequences is that the accused are not warned of their chilling effects during the plea deal process or upon conviction, and they amount to yet another setback that can be especially difficult to overcome.
Employment
Nearly 90 percent of employers across the United States conduct background checks before hiring employees, and most of these employers are not interested in hiring anyone who has served time in prison. In fact, many states outright bar such candidates from public employment. This contributes to the fact that about 60 percent of those who have spent time behind bars remain unemployed a full year after release. Without employment, recidivism becomes that much more likely. Those who do find jobs typically experience considerably diminished wages.
Housing
With a criminal conviction, renting a home can become a serious obstacle, and obtaining a home loan can also pose a problem. Limited access to appropriate housing can increase recidivism.
Sexual Assault and The Sex Offender Registry
Those convicted of reportable sex crimes in the State of Texas are required to add their names to the Texas sex offender registry, and sexual assault is one such crime. Each offender on the registry must provide a significant amount of information that includes:
His or her name
His or her photo
His or her address
His or her criminal offense
Law enforcement keeps all this information compiled and available to the public via its website for the Texas Public Sex Offender Registry. Those who are required to register must do so within seven days of arriving in a city, town, or municipality in which they intend to live or visit for more than those seven days. In order to remain on the right side of state laws, those registrants whose jobs require them to spend 48 hours or more in any county or city at least three times each month are also required to register in that locality. Anyone who has been convicted of an offense involving sexual violence must register for life, but those who are convicted of lesser crimes are generally required to register for ten years, which begins after any prison time that is served and after discharge from community supervision, parole, or state supervision.
Deregistration
Deregistration is a process whereby a registrant has his or her name taken off the registry. While deregistration means that no future registration is required (for the offense in question), there are a variety of things it cannot accomplish, including:
Deregistration cannot appeal a conviction.
Deregistration cannot alter one’s legal requirements regarding disclosure of a sex crime conviction to potential employers.
Deregistration does not allow employment where children are involved.
Deregistration does not affect one’s parole or probation.
Deregistration does not remove one’s DNA from law enforcement databases.
Who Is Eligible?
Under the Texas Department of Public Safety, only people convicted of specific kinds of sex offenses are eligible to deregister. The process involves filing a motion to grant early termination of the legal requirement to be characterized as a sex offender in terms of the registry only. It is within the judge’s legal discretion and authority to do so only if the following are proven:
The registration time requirement is less under federal law than it is under Texas law.
The record of the person requesting deregistration has no more than one conviction or deferred adjudication on it.
The person requesting deregistration has completed the Sex Offender Treatment Program.
A relevant professional writes a letter identifying the person who is requesting deregistration as presenting little or no risk of reoffending.
The conviction that led to registration is a matter of Texas law.
The crime in question was nonviolent in nature.
Case in Point
According to the Austin American-Statesman, several sex offenders in the State of Texas are fighting for their right to privacy in the courts, and some of these cases have gained legal traction. In 2014, one Texas man got a call – out of the blue – from a detective about a criminal charge that was nearly 30 years old. The man – who was 34 at the time – had been charged with indecency with a child (his stepdaughter). He struck a deal with the state that he would plead guilty in exchange for the conviction disappearing after ten years of staying out of legal trouble. The man paid his fees, put in his community service, faithfully attended sex offender counseling, and stayed on the right side of the law for the requisite ten years. In 1996, the charge in question was dropped.
The Collateral Consequences
The man who was contacted by the detective shared with the newspaper that the crime continues to haunt him. He kept up his end of the bargain and maintained a low profile, raising his three sons and working at a chemical plant until he retired in 2009. In the end, the call was to inform him that he was now required to register as a sex offender – permanently – including regular check-ins with the police
Harsher Rules
Over the last 20 years, both state and federal laws have become harsher regarding sex offenses, and sex offender registries have become much longer as a result. In many cases, the long arm of the law had reached back quite far (witness the man’s story above) – well beyond the date when the statutes themselves were enacted. These changes are even striking down legal deals that have already been successfully completed. The fact is that the U.S. Constitution forbids new laws from heaping new punishments onto past crimes. Recent legal arguments, however, maintain that registration is not a punishment but is, instead, a regulation that is intended to bolster public safety – thus bypassing the constitutional snag. Several current cases, however, are calling this legal approach into question.
Protect Your Legal Rights by Consulting with an Experienced Killeen Criminal Defense Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a criminal defense attorney who recognizes the serious nature of the charge you face and is committed to zealously defending your legal rights – in pursuit of your case’s most favorable outcome. We are on your side and here to help, so please do not wait to reach out and contact us online or call us at 254-501-4040 for more information today.
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