If a female employee is assaulted and harassed, can she sue for assault or for sexual discrimination or both? According to the Waffle House, Inc. v. Wiliams, 313 S.W.3d 796 (Tex. 2010) decision, she would have to sue under the Texas Commission for Human Rights Act for discrimination. Limiting the female employee to sex discrimination when her damages might be far worse than allowed under the TCHRA severely limits her. I wrote about that decision here. I also wrote about the pending appeal in the case of B.C. v. Steak ‘n Shake, No. 15-0404 (Tex. 2017). As the B.C. decision illustrates, what happens when the sex discrimination is just one single violent act? In that situation, the female employee could not make out a case for sex discrimination. Her case would be dismissed. A single act of harassment by a co-worker will almost never suffice to establish a claim for sexual harassment by a co-worker.
Fortunately, the Texas Supreme Court recognized that conundrum. In perhaps the only employee friendly decision from the Texas Supreme Court since before 2000, it found that the basis of B.C.’s claim is assault, not harassment. The assault was not tied to any promotion or threat of termination. There was nothing about the assault that suggests her supervisor had the intent to interfere with her job performance. In short, said the court, nothing about this situation indicated that the employer might be liable for tolerating a hostile work environment. That is an important distinction. That means the employee does not need to show the employer knew or should have known the supervisor was capable of sexual violence. The employer can still avoid liability for other reasons. But, it cannot avoid liability by showing it took steps to prevent sex harassment.
The Supreme Court found that the Legislature in passing the TCHRA, intended to create a scheme to combat workplace harassment, not abrogate common law assault. But, the court did not really reconcile its decision in Steak ‘n Shake with Waffle House. In Waffle House, it said flatly that common law tort claims like negligent supervision were incorporated by the Legislature into the TCHRA. See Waffle House decision here. The two opinions can probably not be reconciled. As the dissent to Waffle House points out, common law claims are not pre-empted unless clearly so stated in the statute. The TCHRA does not specifically pre-empt any common law tort claim. Even so, we can all agree that assault claims are not preempted by the TCHRA. See the B.C. v.Steak ‘n Shake decision here.