The Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010), decision was issued a few years ago. In that decision, the Texas Supreme Court decided that a lawsuit based on a tort claim of sexual assault was actually subsumed by the Texas Commission on Human Rights Act. I wrote about that decision here. That meant a claim for sexual assault was turned into one for sexual harassment under the TCHRA. Claims under the TCHRA are limited to $300,000 for emotional suffering type a damages and for punitive damages. That $3000,000 works for sexual harassment claims. But, that limit does not work well for sexual assault claims that involve severe trauma for females who have been abused or raped.

The TCHRA is the Texas version of Title VII. Texas is still one of the very few states to reach that result where sexual assault is somehow subsumed into sexual harassment. Like Title VII, a person complaining of a TCHRA type complaint would have to file her complaint with the EEOC. But, if she filed her suit as a personal injury or tort, then she could go straight to district court. She could skip the EEOC. There would be no caps on her damages, if she won her lawsuit.

A personal injury sexual harassment type lawsuit was pretty rare, even before the Waffle House decision. But, it allowed some women who might have missed the TCHRA deadline to still file suit. A TCHRA type complaint must be filed within 6 months (more or less depending on circumstances) of the incident. But, like many victims, some women are just too overwhelmed with losing her job or suffering some adverse action, or even more likely, they just have a hard time finding an employment law lawyer. So, some women would miss that six month deadline. In such cases, the personal injury sexual harassment was seen as a possible avenue, if a bit risky. The deadline for any personal injury claim in Texas is two years. So, a woman could miss the EEOC deadline and still have a legal option, if her case had personal injury type facts.

But, after Waffle House, that option ended. Now, the Texas Supreme Court re-visits that issue. In B.C. v. Steak ‘n Shake, No. 15-0404, the woman, identified as “B.C.” to protect her identity, was assaulted by a co-worker in the bathroom of a Steak ‘n Shake. As the dissent in Waffle House pointed out, what happens when the assault is just that, an assault and nothing more? In B.C., the attacker simply grabbed her and tried to force her to kiss him and touch his genitals. It was a one-time attack. It would be very hard to argue that was sexual harassment within the definition of the TCHRA. Every definition of sexual harassment requires overt acts over an extended period of time. Yet, the Waffle House decision did not allow for that variation in facts. It issued a broad rule that made little sense.

B.C. v. Steak ‘n Shake is now on appeal to the Texas Supreme Court. See Dallas Morning News report. Oral arguments are set for Nov. 7, 2016.

The Waffle House decision made a silly distinction, that a sexual incident at work would always amount to sexual harassment. There are similarities between the two causes of action, but within the wide variety of the human experience, there are many variations. A blanket rule makes no sense. And, that is why so few states have reached that sort of result. In the lower court, the now Attorney General Ken Paxton defended Steak ‘N Shake. Somehow, that is not surprising.