In Texas, some victims of workplace sexual assault may pursue common law assault claims against their employers, following a recent Supreme Court of Texas ruling. B.C. v. Steak N Shake Ops., Inc., — S.W.3d —, Case No. 15-0404 (Tex. Feb. 24, 2017).

While employer liability for some common law torts may be preempted by the state’s anti-discrimination statute, this may not necessarily be so in a sexual assault case. The holding is important because the Texas Commission on Human Rights Act (TCHRA) provides employers with procedural protections that do not apply to common law tort claims, such as mandatory administrative exhaustion, shortened limitations periods, additional affirmative defenses and limitations on employee remedies.

Background: Waffle House and Steak N Shake

In the case, a Steak N Shake restaurant employee, anonymously proceeding as “B.C.,” claimed to have been sexually assaulted by her supervisor on the restaurant premises. Steak N Shake investigated, but could not substantiate the allegations and, as a result, did not terminate or transfer the accused supervisor. B.C. quit and sued, claiming sexual assault, negligence, gross negligence and intentional infliction of emotional distress. However, she did not assert a sex discrimination or sex harassment claim. Steak N Shake moved for summary judgment, arguing that the common law claims were preempted by the TCHRA. The trial court granted the motion for summary judgment, and the intermediate Texas appellate court affirmed.

The Texas Supreme Court reversed, based in large part on a careful distinction of its prior holding in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010). In Waffle House, a waitress sued after claiming she was subjected to a co-worker’s sexually offensive comments and behavior over a seven-month period. The employee asserted claims for sexual harassment under the TCHRA, as well as common law claims for negligent supervision and retention. At trial, the employee won on all claims. On appeal, the Texas Supreme Court held that the common-law claims were preempted by the TCHRA because the claims were integrally related and predicated on the same underlying behavior. In other words, “[t]he unwanted sexual touching that underlies her negligence claim was assaultive because Williams regarded it as sexually inappropriate, provocative, and offensive,—that is, because it amounted to sexual harassment made unlawful by the TCHRA.” The court concluded that: “[w]here the gravamen of a plaintiff’s case is TCHRA-covered harassment, the Act forecloses common-law theories predicated on the same underlying sexual-harassment facts.”

The Texas Supreme Court found that Steak N Shake presented the reverse scenario. Unlike in Waffle House, the gravamen of B.C.’s case in Steak N Shake was a one-time assault, not an ongoing pattern of conduct amounting to a hostile work environment. Under those circumstances, the TCHRA did not preempt common law claims based on the alleged assault.

Reading Waffle House and Steak N Shake together, going forward, the question of whether conduct will be preempted by the TCHRA will require a determination of “the gravamen of a claim.” The Texas Supreme Court describes this as “its true nature, as opposed to what is simply alleged or artfully pled, allowing courts to determine the rights and liabilities of the involved parties.” The distinction will not always be obvious, but Steak N Shake provides some clues. There, the employee’s claim was based on a single incident. She did not allege sexual actions by other co-workers, she did not allege any pattern of offensive behavior, and she did not allege that Steak N Shake was liable for fostering a hostile work environment.

Implications of Steak N Shake

In short, the Texas Supreme Court’s recent holding instructs courts to look beyond the allegations and determine the gravamen of the claim. If the employee is challenging an employment practice that amounts to discrimination, related common law claims based on the same core of facts will likely be preempted. On the other hand, if the employee is bringing only tort claims arising from a single incident of assault, preemption is unlikely to apply.

While allegations of physical touching or assaultive conduct have always troubled employers, Steak N Shake adds another significant reason to investigate such claims vigilantly and with an understanding that the law recognizes a difference between assault and harassment. 

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