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Employee sexual assault and “shades of gray.”

Here at Cole | Reichek, we litigate employment and personal injury disputes.  While many think of these areas of law as distinct, like many things in life, “it’s complicated.”  A good example is workplace sexual assault.  Many people take it for granted that if they are sexually assaulted by their boss or owner of the company, they can sue their employer for that “assault,” or “negligent retention” or some other tort claim.  It won’t surprise you to hear that Texas is a conservative, pro-business place, .and this is reflected in our statutes and in our court system.  In the past, if an employee was sexually assaulted at work, she had the choice of suing the employer on a tort theory or suing for sexual harassment under either Title VII of the Civil Rights Act of 1964 (Title VII) or the Texas Commission on Human Rights Act (TCHRA).  The benefit of bringing a tort claim versus a sexual harassment claim was that the employee wasn’t limited by the damage caps that apply to sexual harassment claims.  These damage caps are based on the size of the employer, and range from $50,000 to $300,000.  Without being limited by these modest damage caps, sexually assaulted employees could recover damages that more closely approximated the injuries they sustained by opting to file a tort claim against the employer.  This changed in 2010 with the Texas Supreme Court’s decision in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010).  In that case, the court ruled that the employee’s “common law claim … must yield to the Legislature’s statutory framework for sexual harassment claims.”  With these words, the Texas Supreme Court foreclosed significant damage awards for employees who were sexually assaulted on the job.  Not only that, but the Court prevented many employees from having any remedy at all, because of the strict timelines associated with sexual harassment cases.  In order to bring a Title VII suit against your employer for sexual harassment, you must first file a Charge of Discrimination with the Equal Employment Opportunity Commission, and you must do so within 300 days of the conduct you claim to constitute sexual harassment.  To bring a TCHRA claim for sexual harassment, the deadline is even shorter – 180 days to file with the Texas Workforce Commission – Civil Rights Division.  There is no such administrative rigmarole with tort claims – file in court within two years of the assault and you are golden.

The danger of Waffle House was recently illustrated in B.C. v. Steak N Shake Operations, Inc., 461 S.W.3d 928 (Tex. App.—Dallas 2015).  In that case, the employee alleged that during her late shift, her manager followed her into the employee restroom, exposed his penis to her, used force, and committed touching that was unwanted and unprovoked.  The employee brought suit against Steak N Shake, asserting tort claims but not a sexual harassment claim.  The result?  The Court threw the case out, finding that the TCHRA preempted tort claims based on this type of conduct.  No sexual harassment claim = no recovery.  Same result in Dewvall v. Palio’s Five Star, Inc., 2015 U.S. Dist. LEXIS 139676, *2-4 (E.D. Tex. Sept. 21, 2015), where the employee’s manager stuck his finger in her mouth, grabbed her underwear, repeatedly pinched her, brushed his head against her breasts, and hit her in the chin with a closed fist.  The court threw that case out as well, because the employee brought tort claims but no claim for sexual harassment.

These cases illustrate the importance of finding counsel that is versed in not only employment law, but personal injury law as well.  Cole | Reichek practices at the intersection of both, and can help you navigate these tricky issues.

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