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.

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.

Sigh, our Texas Supreme Court is at it again.  In a recent decision, the Court conflated personal injury claims with sexual harassment and other froms of discrimination.  See Waffle House, Inc. v. Williams.  The Court found that claims based on assault and negligent supervision are preempted by the Texas Commission on Human Rights Act.  The TCHRA is the state version of Title VII of the Civil Rights Act of 1964.  The TCHRA prohibits discrimination based on sex, race, national origin and other classifications.  The Court found that the TCHRA provided the exclusive remedy for all conduct related to discrimination.  Formerly, tort claims or personal injury claims would be in addition to, not in lieu of discrimination claims.  

As the dissent points out, this means that if Joe repeatedly slams Mary up against the wall at work, then Mary can sue Joe for assault and battery.  But, if Joe also gropes Mary while repeatedly slamming her against the wall, then Mary can only sue for discrimination.  One major difference is that the TCHRA is limited to $300,000 in emotional damages and punitive damages. But, a claim based on assault and battery would have limited or no dollar limit.  See dissent.  

The $300,000 cap suffices for many claims.  The $300,000 cap applies to the largest employers.  It includes punitive damages and compensatory damages.  Compensatory damages are intended to compensate a victim for emotional suffering.  But, the cap is not enough for some claims.  For example, would $300,000 be enough in a discrimination case also involving rape? Money never truly compensates for the worst abuses.  But, $300,000 would not be enough damages for some cases.  In the case of Jones v. KBR, the victim was raped repeatedly and then confined in Iraq by her employer.  Would $300,000 be enough for the Jones case?

Or, if the employer has less than 100 employees, the punitive damages and compensatory damages would be capped at $50,000.  Would $50,000 suffice for the worst claims involving rape or assault?

The ruling suggests judicial activism.  The issue was not even addressed by the parties.  The Supreme Court refers to a tangential reference by the employer before the lower court.  But, the issue was not presented before the Supreme Court itself.  

The TCHRA is supposed to track the federal equivalent, Title VII, but this ruling directly contradicts Title VII precedent. 

And, ultimately, in this case, the jury had awarded $3.46 million in punitive damages.  The trial court then converted that award into an award of $425,000 for past compensatory damages and $425,000 in punitive damages, due the cap for personal injury claims.  The Texas Supreme Court once against trumps a jury decision.