After the Texas Supreme Court’s opinions in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) and B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276 (Tex. 2017), how should a prudent attorney proceed when dealing with a case for an employee who has been sexually assaulted by another employee or that also involves other sexual harassment in which the sexual assault is a portion of the sexual harassment?

First, we should look at the two cases, beginning with the Waffle House case. The case involved a sexual assault by a co-worker. The Court recognized that the employee had a valid cause of action for common-law assault against the co-worker. The Court said that the “issue before us, however, is not whether Williams [the employee] has a viable tort claim against a coworker. The issue is whether a common-law negligence action should lie against her employer for allowing the coworker’s tortious or criminal conduct to occur, or whether, instead, a statutory regime comprehensively addressing employer-employee relations in this context should exclusively govern.”

The Court stated that a common-law claim for sexual harassment does not exist in Texas and that the remedy for sexual harassment is the Texas Labor Code chapter 21 (Texas Commission on Human Rights Act or TCHRA). Therefore, in this case, the employee should have gone through the remedy created by the TCHRA, which involves an exhaustion of administrative remedies and suit under the TCHRA, after receiving a right to sue from the Commission. Apparently, a significant matter was that the co-employee subjected Williams to six months of sexually hostile and boorish behavior, a part of which was the physical sexual touching of her, which constituted the sexual assault. Since Williams had not exhausted her administrative remedies, she was not able to later make a claim for sexual harassment under the TCHRA and was left with the common law negligence claim against the employer. Therefore, Williams lost her case and was only left with an individual claim against a co-worker and not the employer.

Seven years later, the Texas Supreme Court, in the Steak N Shake case took up the issue of whether a claim by an employee against the employer because her supervisor sexually assaulted her, on a single occasion at work, was preempted by the TCHRA’s statutory scheme for handling sexual harassment. The employer defended the case based on Waffle House and the court of appeals ruled that the employee’s common law sexual assault claim was preempted by the TCHRA. The Supreme Court disagreed by distinguishing Waffle House from the Steak N Shake case. The Supreme Court said, referring to the Waffle House case, that “we have held, and continue to hold, 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.’ …However, where the gravamen of the plaintiff’s case is assault, we hold that the TCHRA does not preempt a common law assault claim.” Id. at 285.

So, with this backdrop, what does a plaintiff-employee do, when she is sexually assaulted as a part of a larger sexual harassment experience by a co-employee or supervisor? Also, another question is why would an employee want to sue under the TCHRA for sexual harassment or the common-law for assault?

The TCHRA involves statutory requirements regarding filing a complaint within 180 days with the TWCCRD, allowing them to investigate, and then granting a right to sue. After the right to sue is granted, the employee must sue within sixty days or lose her rights to do so. Under the TCHRA, the damages have limitations, or statutory caps, as to the amount of any judgment for damages.
A common-law claim for sexual assault, arising from an unwarranted sexual touching, is not limited by statutory requirements of filing within a short window of time or limitations on damages; except that there is a two year statute of limitations in order to file suit on the claim. The damages are not as limited, as under the TCHRA. However, there are no attorney fees allowed, as they are allowed under the TCHRA claim.

The real issue for the plaintiff-employee is, can she bring a claim for both. In other words, can she “have her cake and eat it,” to use an old saying. And, the answer is that we don’t know for sure, but will it ruin part or all of her case by trying?

The manner in which a plaintiff would try to do both would be to file a claim with the TWCCRD within the 180 day time window after the last act of sexual harassment. Then, after receiving the right to sue, the plaintiff would file suit within 60 days including a claim for statutory sexual harassment, without mentioning the assault in that portion of the original petition. Texas allows claims in a lawsuit petition to be plead alternatively, so the employee could alternatively allege a common-law claim for sexual assault in the same suit without including the language surrounding the sexual harassment allegations.

Since, the Supreme Court in Steak N Shake made a big deal of the fact that the plaintiff alleged only the sexual assault cause of action, attempting the above course of alleging both alternatively might spoil the sexual assault claim and allow the court to simply state that the gravamen of the claim is a sexual harassment claim, thereby, sinking the common-law assault claim. The Court in Steak N Shake emphasized that there had been no sexual harassment until the supervisor sexually assaulted the employee, thereby, highlighting the point that there had not been a previous campaign of sexual harassment of which the assault was just a portion.

It would seem that an employee that has a sexual assault claim only should always file a timely complaint with the TWCCRD alleging the sexual assault as a sexual harassment, so as not to waive the TWCCRD claim if the court held that the assault was just part of an ongoing campaign of sexual harassment and, therefore, should be pursued under the TCHRA scheme.

If the best claim because of the evidence and damages is the sexual assault claim, the employee could allege this claim first, and then alternatively allege the sexual assault claim as a claim covered by the TCHRA, without mentioning or alleging any other surrounding sexual harassment. In this way, the gravamen of the claim would be the sexual assault but should allow the employee to elect to take advantage of the benefits of the TCHRA (attorney fees), if the jury found damages that were within the TCHRA caps, anyway. In this manner, as long as the only claims alleged were because of the actual sexual assault, the employee should be able to take the larger damages that would be above the caps, if the jury awarded them. Or, the employee could elect to recover under the TCHRA and get the attorney fees, should the jury award be within the TCHRA caps, anyway.

The employee that alleges other actions than the sexual assault as sexual harassment runs a real risk of causing the sexual assault to be caught under the TCHRA scheme only, thereby giving up the larger damages above the TCHRA caps. The Court in Steak N Shake, after previously saying that they were, assuming without deciding, that “sexual assault is always sexual harassment” stated that:

“B.C. is not attempting to shoehorn a harassment claim into an assault by focusing solely on one aspect of a long-standing pattern of harassment so as to escape the Legislature’s carefully crafted and balanced scheme to prevent gender-based discrimination, as was the case in Waffle House. Rather, on this record, after resolving all reasonable inferences in her favor, the essence of B.C.’s claim is assault. We hold that where the gravamen of a plaintiff’s claim is assault, as it is here, the TCHRA does not foreclose the assault claim even when predicated on the same facts that would presumably constitute a sexual-harassment claim under the TCHRA.”

In conclusion, it appears that it would be extremely dangerous for an employee, who has a claim for sexual assault, but that was mixed with a larger campaign of sexual harassment to bring a common-law sexual assault (that has not been through the TCHRA complaint scheme alleged as a sexual harassment) with an alternative claim of sexual harassment under the TCHRA involving other actions than just the assault. The Steak N Shake case seems to mean that having a mixture of the two means that all of the claims would be relegated to the TCHRA scheme. Of course, the employee could still bring a sexual assault claim against the employee, who assaulted her, but this is usually not practical because of lack of funds to collect any judgment.

It would also seem that a prudent attorney, who believes he only has a sexual assault claim, would want to consider taking the assault claim through the TCHRA scheme as a precaution in case evidence arose of other actions that might constitute sexual harassment implicating the TCHRA scheme as discussed in Steak N Shake. The prudent attorney might also want to state in the TWCCRD complaint that, although you believe that the sexual assault is a common-law claim, it is being complained about to the TWCCRD as a precaution and in the case that the court holds that it is subject to the TCHRA scheme. Then, when suit is filed, you would allege the common-law assault first and alternatively allege the assault as a TCHRA sexual harassment claim.