The Fifth Circuit held today that a spouse of a successful Title VII plaintiff cannot maintain a legal claim for loss of consortium (i.e., loss of spousal services) under state and federal law.  In Barker, Tracey Barker was a civilian worker employed by Halliburton (aka KBR).  She claimed she was subjected to sexual harassment, retaliation and various other torts while working for Halliburton in Iraq.  She and her husband filed suit in federal district court but the wife’s claims were compelled to arbitration and the husband’s claims were abated pending the arbitration. 

Ms. Barker won $1.23 million from the arbitrator (reduced from $2.93M) on the Title VII claims but the tort claims for assault, battery, intentional infliction of emotional distress and false imprisonment were dismissed.  (Note:  Who says arbitrators don’t render large awards in employment cases?).  Mr. Barker’s claims were dismissed by the federal district court because it held he could not maintain a claim that was solely derivative of his wife’s tort claims where those tort claims had been dismissed by the arbitrator and the only successful claim was under Title VII.

The Fifth Circuit Court of Appeals affirmed reasoning that:

Under Texas law, a loss of consortium claim is derivative of the tortfeasor’s liability to the physically injured spouse.  Thus, when a husband asserts a loss of consortium claim, he must establish that the tortfeasor was liable for the tort claim of his physically injured wife.  Galen Barker’s argument fails for two reasons.  First, Galen Barker’s claim must derive from a successful tort claim.  Therefore, in Texas, a loss of consortium claim may not derive from a spouse’s federal civil rights claim.  The second reason Galen Barker’s argument fails is because the arbitrator dismissed Tracey Barker’s tort claims.  Galen Barker’s loss of consortium claim must derive from his wife’s successful tort claim for her physical injuries.  That is not possible here because the arbitrator dismissed Tracey Barker’s tort claims with prejudice.

Consequently, if a Texas employer is faced with an employee-spouse’s loss of consortium claim that derive solely from violations of civil rights laws, the employer should consider asking the court to dismiss the spouse’s claims. You can download the complete opinion of Barker v. Halliburton here.