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

by Fisher Phillips
Contact

Fisher Phillips

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 cases. It specifically noted that the Texas legislature had not intended to burden assault victims with capped damages or protect employers by requiring the predictability that results from administrative exhaustion requirements, simply because an assault happened to occur in the workplace.

The high court distinguished the facts of this case from those in Waffle House by finding them unique. For example, B.C.’s alleged assault occurred in a single violent instance whereas the conduct in Waffle House involved multiple instances of nonconsensual touching that occurred over a six-month period.

The Texas Supreme Court not only distinguished the two cases based on the severity and frequency of the assailant’s conduct, but in essence – or gravamen – on account of the fundamental differences arising out of potential employer liability raised in each lawsuit. In Waffle House, the plaintiff based her claim on the employer’s retention and continued supervision of the plaintiff’s co-worker (and harasser), which subjected the employer to the TCHRA’s mandatory administrative scheme. Very differently, B.C.’s claim was predicated on a theory of vicarious liability given that the alleged wrongdoer was a company supervisor.

The Texas Supreme Court explained that there is a fundamental and consequential difference between sexual assault and sexual harassment, and that it is the gravamen of the complaint that makes the difference insofar as which theory applies. In Waffle House, the gravamen of plaintiff’s complaint was deemed to be hostile work environment, while the assaultive nature of her claims ostensibly gave rise to the additional common law claim for negligence. Because the gravamen of the Waffle House complaint was the sexual harassment and not the assault, the claims were covered and preempted by the TCHRA.

By contrast, the court in Steak ‘n Shake noted that B.C. did not allege that her employer was liable for fostering a hostile work environment, something the TCHRA is intended to remedy. Instead, B.C. alleged her supervisor, on a single occasion and without warning or prior incident, sexually assaulted her in the restaurant in a violent fashion. The Texas Supreme Court noted that the typical hallmarks of a sexual harassment claim were absent from B.C.’s complaint; namely, she did not allege that her supervisor offered a promotion or tied sexual favors to job performance; her supervisor’s actions (outside of the single alleged assault) did not have the purpose of unreasonably interfering with her work performance or creating a hostile environment; there were no discussions or actions of a sexual nature prior to the assault; and she did not claim her supervisor’s conduct to be part of a pattern of prior similar behavior. When considering the factual assertions set forth in the pleadings in the light most favorable to B.C., the court concluded the gravamen of her complaint was assault and not harassment.

What’s the take away in this case? When the gravamen of a plaintiff’s claim is assault, the TCHRA will not preempt an assault claim, even if grounded in the facts that could also constitute a sexual harassment claim under the TCHRA. However, as we all know, life isn’t always that simple.

The Critical Distinction Between Harassment And Assault

Under Texas statutory law, harassment is unlawful where: (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is so severe or pervasive that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. Hostile work environment claims are actionable through the TCHRA when based upon allegations of discrimination.

Under Texas common law, a person commits an assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe the other will regard that contact as offensive or provocative.

Employers need to understand the role they play when it comes to harassment claims under the TCHRA. The Texas Supreme Court has focused on whether employers know, tolerate, or foster alleged harassment, which are important inquiries when sexual harassment liability is determined. This is vastly different than determining whether an assault has taken place, where employers can be found liable on a respondeat superior theory of liability – in other words, vicarious liability.

Predictions

The Steak ‘n Shake decision will undoubtedly embolden plaintiff’s lawyers to plead common law tort claims. It may also confuse courts and make it much more difficult for employers to get such claims dismissed on the basis of regulatory preemption. If a court classifies a claim as sexual harassment, the claim will be subject to the TCHRA, including administrative prerequisites to suit and damage caps. But if a court classifies a claim as sexual assault, it will be governed by common law where there are no administrative prerequisites to suit and damage caps do not apply. From now on in Texas, if a plaintiff’s harassment claim includes an allegation of objectionable physical contact, the plaintiffs’ attorney may well assert an assault claim, not harassment, in order to avoid the damages limits and charge-filing requirements of the TCHRA.

Applying the gravamen test, Texas courts will now consider the gravity of the alleged assault and whether the assault was part of a pattern of conduct or occurred as a one-time incident. The alleged physical assault in Waffle House, while offensive, was not deemed to be as egregious as the violent bathroom assault in Steak ‘n Shake. Likewise, the conduct in Waffle House was part of a pattern of conduct that extended over a six-month period, leading to the finding of a hostile work environment.

Clearly, courts will be faced with harder cases that have more convoluted facts. For example, where will Texas courts draw the line when an assailant allegedly assaults the plaintiff more violently than the alleged behavior in Waffle House, but not as abhorrently as the alleged conduct in Steak ‘n Shake? Even on remand of the Steak ‘n Shake case, the plaintiff will still need to prove that the assault took place as alleged and that the employer should be vicariously liable for it.   The Texas Supreme Court did not address the merits of the claim or under what circumstances an employer can be held responsible for a supervisor sexually assaulting an employee, only that the employee would not be required to use TCHRA as an exclusive remedy. These kinds of fact patterns and legal issues will no doubt blur the lines even more.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.