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Texas Supreme Court Says Employees Can Sue Employers for Assault

Published by and on April 14, 2017

Companies should be familiar with potential common law tort claims employees could bring against their employer in their particular state.

The Texas Supreme Court ruled on February 24, 2017 that an employee in Texas may bring a separate common law claim for assault against his or her employer in cases involving allegations of sexual assault in the workplace. A former employee of Steak N Shake sued the company for assault, among other claims, alleging that her supervisor sexually assaulted her during one of her shifts at the restaurant. The district court granted Steak N Shake’s motion for summary judgment on her assault claim. The court of appeals affirmed the ruling on the ground that the Texas Commission on Human Rights Act (TCHRA) provided the sole remedy for sexual harassment in the workplace.

Previously, the Texas Supreme Court had held that the TCHRA foreclosed common law negligence claims against an employer for a co-worker’s tortious behavior when the essence of the plaintiff’s claim was based in sexual harassment covered by the TCHRA, not sexual assault. Yet, when analyzing the claims against Steak N Shake, the Court noted that the supervisor’s alleged conduct was different. In the previous case, the plaintiff was subjected to several harassing remarks, touching, and other offensive behavior over the course of six months.

Conversely, the claim against Steak N Shake in the instant case was based on one occasion of severe assaultive conduct, not a pattern of behavior, meaning the essence of the employee’s claim was assault, not sexual harassment. In other words, to bring a cognizable harassment claim under the TCHRA, the employee would have to prove the assault (rather than repackaging harassment into an assault). The Court held that because the TCHRA’s language provides a framework for combatting gender discrimination in the form of harassment, not the common law tort of assault in the workplace, the TCHRA does not preclude a claim of assault against an employer.

Welter Insight

Companies should be familiar with potential common law tort claims employees could bring against their employer in their particular state, and how these claims are affected by the state statutes that prohibit discrimination. Employers should be aware that they could in some circumstances be held liable for the tortious conduct of their employees. They should also implement measures to identify and mitigate the risk of tortious conduct occurring in the workplace.

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