Steak N Shake: Texas sexual harassment statute does not preempt a common-law assault claim if the “gravamen” of the claim is assault
[Warning: this post includes descriptions of egregious sexual assault and harassment from case law]
I had a friend in college who liked to end every argument around the dining hall table by saying “it’s really just a question of where you draw the line.”[1] It was supposed to be a joke. He was making fun of the overuse of that line—it had become the academic version of the cliché “it is what it is” on sports talk radio. But the funny thing is that he was often right.
The Texas Supreme Court’s decision in B.C. v. Steak N Shake proves that legal issues often do come down to a question of where you draw the line. The Steak N Shake court had to decide how to draw the line between sexual harassment and sexual assault in the workplace.
It’s a distinction that has important legal consequences in Texas. If the court classifies the claim as sexual harassment, then the claim will be subject to limits imposed by the Texas Commission on Human Rights Act (TCHRA), including a cap on damages. If the court classifies the claim as sexual assault, then it’s governed by common law, which means no cap on damages.
You can already guess which one a savvy plaintiff’s lawyer is going to pick. If the harassment involved any objectionable physical contact, the plaintiff will typically plead the claim as sexual assault, not sexual harassment, to get around the limits of the TCHRA. The plaintiff will also sue the employer for common law negligence, such as negligent hiring or retention.
Not so fast, the Texas Supreme Court said in 2010. In Waffle House v. Williams, the court held that the TCHRA’s statutory framework for sexual-harassment claims preempted an employee’s common law negligent supervision and retention claim.[2] “If [the employee’s] common-law claim for negligent supervision and retention is allowed to coexist with the statutory claim,” the Waffle House court reasoned, “the panoply of special rules applicable to TCHRA claims could be circumvented in any case where the alleged sexual harassment included even the slightest physical contact.”[3]
In other words, Waffle House said you can’t get around the limits of the TCHRA by calling sexual harassment something else, like common law assault.
The problem with the distinction is obvious. In many cases, as in Waffle House, the conduct alleged by the plaintiff qualifies as both harassment and assault. The Waffle House court adopted the “gravamen” test to address this problem. “Where the gravamen of a plaintiff’s case is TCHRA–covered harassment,” the court said, “the Act forecloses common-law theories predicated on the same underlying sexual-harassment facts.”
Gravamen is a fancy legal word for “essence,” or the most substantial part of a grievance.
The “boorish and objectionable conduct” alleged in Waffle House included both non-physical harassment and objectionable physical contact. The manager allegedly pushed the employee, held her arms with his body pressed against her, rubbed against her breasts with his arm while she reached up to put plates away, and “cornered” her on several occasions.[4] The court said that the gravamen of this alleged conduct was harassment, not assault.
Personally, I disagree with the preemption rule adopted in Waffle House. I would have joined the two dissenting justices. The Texas legislature knows how to say that a statute preempts the common law–as it did in the Workers Comp statute. The TCHRA, in contrast, doesn’t expressly state that it preempts common-law claims based on the same facts, so I would have held that the plaintiff can still pursue the common-law claims. But I can at least see the logic of the preemption argument.
And the rest of the Waffle House decision makes some sense to me. If you’re going to say that the statute preempts common-law claims that are based on allegations of harassment, then the “gravamen” test is probably the most workable way to distinguish between harassment and assault.
And Waffle House seemed to get it right when it said that the essence of the manager’s boorish conduct was harassment, even though the conduct would also meet the definition of assault. You have to draw the line somewhere.
But what if the manager’s conduct in Waffle House had been more violent and egregious?
Let’s say the male supervisor attacked a female employee in a restaurant restroom during an overnight shift. He pushed her against a sink, grabbed her by the back of the head, and tried to kiss her. During the struggle, the supervisor allegedly exposed himself, pulled the woman’s pants down, and put his hand up her shirt. Although the supervisor and employee had socialized before—such as sharing beer and cigarettes in the restaurant parking lot—there was no sexually suggestive conduct by the supervisor prior to the alleged assault.
What would the gravamen of those allegations be, harassment or assault?
That was the issue in Steak N Shake. Applying Waffle House to these more egregious allegations, the Texas Supreme Court found that the gravamen or “essence” of the claim was assault, not harassment. Therefore, the common-law assault claim was not preempted by the TCHRA.
You could see this coming. Even this pro-business court doesn’t want to see the headline “Texas Supreme Court Says Victim of Bathroom Attack Can’t Sue Employer.” But where does this leave Texas law?
Putting Waffle House and Steak N Shake together, the “gravamen” test seems to turn on two factors. First, how violent or egregious is the physical assault? The alleged physical contact in Waffle House, while offensive and objectionable, was not shockingly violent. In contrast, the assault alleged in Steak N Shake was a violent struggle in a restroom. Second, was the assault part of a pattern of harassing conduct, or was it an isolated incident? Where the assault is part of a pattern, as in Waffle House, the gravamen of the claim is more likely to be “hostile work environment,” a type of sexual harassment.
Of course, it’s easy to imagine harder cases. The next case that goes up on appeal will likely involve allegations that are more egregious than the pattern of boorish behavior in Waffle House, but not as violent as the conduct alleged in Steak N Shake. It’s not always easy to know where to draw the line.
I for one look forward to a day when workplace incidents like these are a thing of the past, regardless of whether you call them assault or harassment. But sadly, that day is probably a long way off.
It is what it is.
*Update: In Solis v. S.V.Z., 566 S.W.3d 82 (Tex. App.—Houston [14th Dist.] 2018, pet. denied), the court applied the “gravamen” rule of Waffle House and Steak N Shake apply to a claim of harassment and assault of a 16-year-old minor who lacked the legal capacity to consent. The court characterized six facts from Steak N Shake as six non-exclusive “factors” for the preemption analysis and found that all six factors favored finding that the minor’s claim “sounded in sexual assault, rather than sexual harassment.” Id. at 101.
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Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. Thomson Reuters named him a Texas “Super Lawyer”® for Business Litigation in 2020, 2021, and 2022.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
[1] Yeah, we got pretty wild and crazy back then. Don’t tell my kids.
[2] Waffle House, Inc. v. Williams, 313 S.W.3d 796, 812 (Tex. 2010).
[3] Id. at 807.
[4] Id. at 799.
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