Blurred Lines: Texas Supreme Court Applies Hazy Distinction Between Workplace Harassment And Assault

The Texas Supreme Court recently blurred the distinctions between harassment and assault claims as they apply to employer liability under the state's antidiscrimination statute. In considering whether a plaintiff is required to expressly plead a state law sexual harassment cause of action when bringing such a claim, the court said that plaintiffs need only bring a sexual assault tort claim - carrying with it no limitations on damages and no administrative exhaustion requirements - when the gravamen of the complaint is assault as opposed to harassment.

The Court's February 24, 2017 decision will likely embolden plaintiffs' attorneys to ratchet up the number of claims that are characterized as "assault" as opposed to "harassment," leading to additional difficulties for employers who must defend against them (B.C. v. Steak 'n Shake Operations, Inc.).

Employee Alleges Violent Sexual Assault By Supervisor

A plaintiff (whose initials are "B.C.") was an associate at a Steak 'n Shake restaurant in Frisco, Texas. She alleged her supervisor had sexually assaulted her with inordinate violence in the restaurant's bathroom one night. Prior to the assault, she claims her supervisor had not acted in any sexual manner toward her.

B.C. sued Steak 'n Shake and the supervisor individually, claiming assault, sexual assault, battery, negligence, gross negligence, and intentional infliction of emotional distress. Steak 'n Shake asked the trial court to dismiss the case, arguing that the state statute governing sexual harassment, known as the Texas Commission on Human Rights Act (TCHRA), preempted B.C.'s assault claim. The trial court agreed with the employer and dismissed the case. An appellate court upheld the trial court's ruling, citing the 2010 Texas Supreme Court decision in Waffle House, Inc. v. Williams, which held that the TCHRA's statutory remedy is the exclusive avenue for those pursuing claims of workplace sexual harassment. B.C. then asked the Texas Supreme Court to review the matter.

Supreme Court Resurrects Plaintiff's Claim

To the surprise of many, the Texas Supreme Court reversed the appeals court and breathed new life into B.C.'s claim. It ruled that claims of assault do not always have to be brought under the TCHRA even if they could be. It pointed out that the TCHRA has a strict damages cap, and also requires plaintiffs to jump through certain administrative hoops before they may bring their claims, which should not apply in sexual assault...