The Texas Supreme Court has accepted a case out of the Dallas Court of Appeals that will give the state’s highest court the opportunity to expand or narrow its preemption doctrine on employment discrimination claims brought under Texas law. In 2009 the Texas Supreme Court rendered its opinion in Waffle House v. Williams that held claims of sexual harassment in employment could only be brought under Chapter 21 of the Texas Labor Code, commonly referred to as the statute’s original name Texas Commission on Human Rights Act. Under Waffle House a plaintiff cannot bring common law claims, such as assault, that relate to the same set of facts that apply to a claim for sexual harassment under the Texas Labor Code (aka TCHRA).
Details of the case before the Supreme Court of Texas
In the case brought on appeal, B.C. v. Steak and Shake Operations, the plaintiff sought to avoid the Waffle House preemption doctrine by asserting sexual harassment requires a pattern or practice of harassing behavior and in this particular case there was one single event underlying the claims. Summary judgment was granted to the employer under the Waffle House doctrine and affirmed by the Dallas Court of Appeals. The appellate court found no basis for the plaintiff’s contention that sexual harassment requires multiple events under the TCHRA. The Supreme Court of Texas has taken up the case with oral arguments scheduled for later in the year and an opinion will likely follow late 2016 or early 2017.
Probable outcome from the Texas Supreme Court
The plaintiff likely loses here because there is well settled law under both state and federal law that a single severe instance of harassment can form a valid claim for sexual harassment under the TCHRA and Title VII. Under both the TCHRA and Title VII a claim for sexual harassment must, among other elements, prove the unwelcome behavior was severe or pervasive. There is considerable case law that supports a single severe act as sufficient to bring a claim. In those instances where there is a single act that does not rise to the definition of severe courts often find that these claims fail under anti-employment discrimination laws but common law claims on the same facts are preempted by the same statutory anti-employment discrimination laws. Texas courts have not addressed this issue under Waffle House and it is likely this case will provide an answer under the TCHRA.