Sexual harassment in the workplace can take many forms, from inappropriate comments to sexual assault. When alleged sexual harassment involves alleged assault, a claimant might be able to assert both statutory and common-law causes of action. This potentially raises questions about preemption. Disputes between employees and employers tend to fall under the purview of employment statutes like the New York State Human Rights Law (NYSHRL), while tort claims like assault are based on common law. The Texas Supreme Court ruled earlier this year that the state’s employment statute does not preempt an employee’s tort claim alleging sexual assault by a supervisor when “the gravamen of a plaintiff’s claim is not harassment, but rather assault.” BC v. Steak N Shake Operations, Inc., No. 15-0404, slip op. at 1 (Tex. Sup. Ct., Feb. 24, 2017).
Multiple New York employment discrimination statutes prohibit discrimination by employers on the basis of sex. Sexual harassment is considered a type of sex discrimination when it involves a “quid pro quo” demand for sexual activity as a condition of employment, or when it creates a hostile work environment that prevents an employee from doing their job. Employers can be held strictly liable for sexual harassment by supervisors, managers, or executives. They may be liable for sexual harassment by coworkers when they knew or should have known about the harassment but failed to take reasonable steps to stop or prevent it. A single incident, if severe enough, could support a claim for quid pro quo sexual harassment or hostile work environment.
The plaintiff in BC worked at a restaurant owned and operated by the defendant in the Dallas, Texas area. She alleged in her lawsuit that a supervisor, who “had neither spoken nor acted in a sexually suggestive manner” before, sexually assaulted her during an overnight shift at the restaurant in October 2011. BC, slip op. at 2. She sued the defendant and the supervisor, asserting multiple tort claims, including assault, sexual assault, and battery.
The trial court granted the defendant’s motion for summary judgment, finding that Texas’ employment statute preempted the common-law tort claims. The appellate court affirmed this ruling, citing an earlier decision by the Texas Supreme Court holding that the state employment statute was “the exclusive remedy for workplace sexual harassment.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801-02 (Tex. 2010).
The Texas Supreme Court reversed the lower court rulings and reinstated the case. It distinguished this case from its earlier decision in Waffle House, first by noting several significant factual differences. For example, while Waffle House involved “six months of ‘boorish’ behavior,” the plaintiff in BC alleged “a single violent assault…in an apparent attempt to force [her] to participate in immediate and nonconsensual sexual activity.” BC, slip op. at 6-7.
The court also noted that the legal claims were different. Waffle House’s claims were based on negligence, while BC alleged intentional torts and sought to hold the employer liable for the acts of “one of its alleged vice principals.” Id. at 8. Restricting the plaintiff to statutory claims, the court held, would mean that “any action by an employer, no matter how egregious or severe, is subject to the [statutory] administrative scheme so long as the conduct can be characterized as sexual harassment.” Id. at 10.
The knowledgeable and experienced sexual harassment attorneys at Phillips & Associates represent employees, former employees, and job seekers in New York City, advocating for them in claims of unlawful employment practices like sexual harassment. To schedule a free and confidential consultation to discuss your case, contact us today online or at (212) 248-7431.
More Blog Posts:
New York State Investigation and Lawsuits Review Liability of Hollywood Producer’s Company for Sexual Harassment and Assault, New York Employment Attorney Blog, November 16, 2017
Gathering Evidence to Prove Sexual Harassment in New York, New York Employment Attorney Blog, November 6, 2017
Unwelcome Touching of a Sexual Nature Constitutes Sexual Harassment in New York, and It Is Also a Crime, New York Employment Attorney Blog, October 31, 2017