The Supreme Court of Texas served up a significant victory for Waffle House in a case holding that a plaintiff alleging both a statutory sexual harassment claim and a negligent supervision and retention claim based on the same conduct is limited to recovering solely on the statutory remedy.
Here are the facts as reported by the Court. Cathie Williams worked as a Waffle House waitress for approximately eight months beginning in 2001. During her employment she was subjected to offensive sexual comments from a male co-worker cook. These remarks were sometimes accompanied by physical gestures or attempts at unwelcome flirting. Additionally, the harasser occasionally pushed Williams into the counters and grill; rubbed his arm against her breast; and on one occasion came up behind her, held her arms and pressed his body against hers.
Williams complained to the restaurant manager, but the conduct did not stop. Williams then complained to the district manager. According to Williams, little effort was made to investigate or remedy the offensive conduct. Williams ultimately resignedly complaining that she was constructively discharged.
Williams filed her lawsuit against Waffle House alleging a statutory sexual harassment claim under the Texas Commission on Human Rights Act (TCHRA) and a common law negligent supervision and retention claim for retaining the harasser after Williams’ complaints. The jury returned a total verdict on both claims of approximately $3.89 million. Williams elected her remedies under the common law negligence claim which provided her a greater recovery than the statutory claim (and its caps) allowed. The trial court ultimately entered judgment in Williams’ favor for $900,000.
Waffle House appealed arguing that Williams’ common law negligent supervision and retention claims were completely preempted because her exclusive remedy for workplace sexual harassment was the statutory claim under the Texas Commission on Human Rights Act. Waffle House argued that, at a minimum, the damages had to be reduced to reflect the lower damages caps provided for under the TCHRA.
In its analysis, the Court was persuaded that the statutory remedies should be the exclusive remedies under these facts given the comprehensive procedural rules and remedies the Texas Legislature crafted in creating a statutory sexual harassment claim. Although not specifically articulated, the Court also appeared to be concerned that plaintiffs subjected to workplace harassment might forego the comprehensive administrative procedures under the TCHRA to pursue potentially more lucrative negligence claims, thereby rendering the Texas Workforce Commission’s Civil Rights Division less relevant.
The Court held that a sexual harassment plaintiff cannot recover under a negligence theory where the negligence is entwined with the facts of the complained-of harassment. Stated differently, where the "negligence is rooted in facts inseparable from those underlying the alleged harassment," the plaintiff’s sole remedy is a statutory harassment claim. However, where a negligence claim arises from facts unrelated to the sexual harassment (e.g., assault-based negligence claim), the TCHRA may not necessarily provide the sole remedy.
You can download the majority opinion and dissent here.