Earlier this year, the Texas Supreme Court considered the question of whether an employee’s remedy in a sexual assault case against her employer was limited to the sexual harassment statutes, or whether the employee can bring a separate common law claim for assault. In B.C. v. Steak n’ Shake Operations, Inc., the Texas Supreme Court held that where the essence, or gravamen, of an employee’s claim is assault rather than harassment, the Texas Commission on Human Rights Act (“TCHRA”) does not preempt the employee from bringing a common-law assault claim.  In doing so, the Texas Supreme Court distinguished and narrowed its previous holding in Waffle House, Inc. v. Williams, in which the Court had held that a common-law tort claim that arises out of the same or similar facts as a sexual harassment claim is preempted by the TCHRA.  Blurring the distinction between claims of sexual assault and sexual harassment that existed previously, the decision suggests that employees who are subject to a single, severe instance of sexual assault by an employer’s “vice principal” may bring a common law sexual assault claim against the employer, but employees that are subject to a pattern of sexual harassment involving conduct less violent or offensive than that constituting assault, may only bring a claim under the TCHRA.  This development is particularly noteworthy since claims brought under the TCHRA are subject to administrative exhaustion requirements and damages caps, while common-law claims are not subject to such limitations.

Employee Seeks to Hold Employer liable for Workplace Sexual Assault by Supervisor

B.C. worked as an employee at a Steak n’ Shake restaurant location in Frisco, Texas. Her lawsuit alleged that she was sexually assaulted by her supervisor in the restaurant bathroom during an overnight shift.  She asserted claims against Steak n’ Shake and the supervisor individually for assault, sexual assault, battery, negligence, gross negligence, and intentional infliction of emotional distress. The employee sought to hold Steak n’ Shake liable for the assault by her supervisor on the theory that he was acting as a vice principal of the restaurant and, therefore, the restaurant was directly liable for its employee’s tortious actions.

The employer moved for summary judgment, in part on the grounds that the TCHRA preempted her common-law assault claim. The trial court granted summary judgment for the employer and the Dallas Court of Appeals upheld the trial court’s decision.

Texas Supreme Court Overturns Lower Court Rulings and Reviews the Employee’s Claims

On review, the Texas Supreme Court reversed the ruling of the appeals court. The Court began its analysis of B.C.’s case with a review of Waffle House, the 2010 decision upon which the Dallas Court of Appeals relied when affirming the trial court’s ruling. Waffle House did not involve a claim for assault, as in Steak n’ Shake, but instead involved a claim for common-law negligent retention and supervision, based on the employer’s claimed failure to prevent ongoing sexual harassment of an employee by a coworker.  The Texas Supreme Court found these differences in the factual circumstances to be determinative, particularly the severity and frequency of the assailant’s conduct in each instance, and additionally distinguished Waffle House from Steak n’ Shake on the nature of the employee’s claims and the fundamental theory of potential employer liability.

In Steak n’ Shake, the employee alleged a single violent assault by a supervisor who had not previously acted in a sexual manner toward her, unlike in Waffle House, where an employee was subjected to six months of offensive sexual comments and behavior by her coworker.  The Court noted that the behavior in Waffle House included multiple incidents occurring over a period of time, which resulted in the creation of a hostile work environment, a claim which falls squarely within the context of the TCHRA’s framework.  The Court also distinguished the nature of the claims by holding that in Waffle House, the employee’s claim was actually sexual harassment and not assault.  B.C. alleged only a single instance of violent assault by her supervisor, and alleged that her employer was directly responsible for the assault by her supervisor, as a vice principal of the employer, not as a result of negligent supervision of a lower level employee.  The Texas Supreme Court concluded that the gravamen of B.C.’s claim was assault, rather than sexual harassment.  Consequently, her claim for assault was not preempted by the TCHRA.

The ruling allows employees who are sexually assaulted at work by a supervisor of vice principal status to bring a lawsuit against their employer for a common-law assault claim, rather than restricting such claimants to the assertion of a statutory claim under the TCHRA, with its administrative requirements and damages cap.

Potential Implications of the Texas Supreme Court’s Decision

What does this mean for employers? The ruling may likely result in plaintiffs’ counsel asserting assault and battery claims in addition to sexual harassment claims, at least during the initial phase of the lawsuit. The ruling may additionally cause an employer to have to litigate factually-intensive questions regarding who qualifies as a “vice principal” under Texas law.  The Court’s recent holding is likely to cause confusion and may also increase the costs and complexity of litigation.  Lower courts will be tasked with determining whether the essence of a complaint is assault or sexual harassment.  Because the Texas Supreme Court did not draw a bright line, employees subject to a pattern of harassment may be limited to claims under the TCHRA, while employees subject only to sexual assault (with no ongoing harassment) may now be allowed to assert common law claims and not be limited to claims under the TCHRA.

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