The case arose from a dispute involving an SMU professor who alleged she was denied tenure due to discrimination and retaliation. In addition to statutory discrimination and retaliation claims against the University, she brought common law claims for defamation and fraud against individual co-workers, based on statements and actions taken during the tenure review process. The district court dismissed the defamation and fraud claims against the employees, reasoning that the Texas Commission on Human Rights Act (TCHRA)
preempted such claims when they were based on the same conduct as the statutory discrimination claims.

The Fifth Circuit Court of Appeals certified the question to the Texas Supreme Court. In holding that employees were not shielded from common law tort claims based on the
TCHRA preemption provisions, the Court noted the following as significant:

• The TCHRA is expressly limited to employer liability and does not create personal
  liability for individual employees.
• The Act’s comprehensive remedial scheme precludes duplicative or alternative
  claims against employers, it does not extend that exclusivity to individual employees.
• Longstanding Texas common law provides remedies for torts such as defamation
  and fraud, and nothing in the Act’s text or structure indicates a legislative intent to abrogate
  those remedies as to employees.

The practical effect of the decision is that employees accused of workplace misconduct—such as making allegedly defamatory statements or committing fraud—may face personal liability under common law, even if the same conduct is also the basis for a statutory discrimination or retaliation claim against the employer. In practice, this does not appear to come up often, the Court’s decision could encourage a greater number of these filings in the future.

A copy of the full opinion is available here.