The Supreme Court of Texas agreed to hear a case affirming summary judgment in favor of an employer sued for the acts of its supervisor in a sexual assault case. In B.C. v. Steak and Shake Operations, the Dallas Court of Appeals held that the employee’s common law tort claims (i.e., assault, battery, and negligence) against an employer based on the supervisor/manager’s conduct were preempted by the Texas Commission on Human Rights Act.
The grant of the petition for review in Steak and Shake gives the Supreme Court of Texas an opportunity to expand on or narrow the preemption doctrine it staked out in Waffle House v. Williams. In Waffle House, the Court held that “[w]here the gravamen of plaintiff’s case is TCHRA-covered harassment, the Act forecloses common law theories predicated on the same underlying sexual harassment facts.” B.C. attempted to avoid the application of Waffle House by arguing that the TCHRA did not preempt her assault claim because an “assault can arise out of an isolated incident, [but] sexual harassment necessarily requires a pattern of conduct.” The Dallas Court rejected Plaintiff’s argument stating that it found no support for the position “that a sexual harassment claims under the TCHRA must be based on more than a single or isolated sexual assault. . . .” Because a sexual harassment claim under Title VII and the TCHRA could arise from a single, severe action, the Supreme Court is likely to affirm the Dallas Court of Appeals. Oral argument will likely to be scheduled for later this year with an opinion in first or second quarter 2017.
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The Dallas Court of Appeals opinion can be downloaded here.