Sexual Harassment: Sexual Assault Personal Injury Claims in Texas

Sexual harassment is illegal under both federal and state law. It is widely prohibited under the premise that an individual has the basic legal right to go to work without having to face harassment.  In some instances, sexual harassment can form the basis of a civil damages lawsuit based upon Texas injury law that is not limited by statutory caps on awards.

What is Sexual Harassment?

There is a wide range of behavior that can form the basis of a sexual harassment claim in Texas.  An action need not involve any kind of physical contact in order to constitute sexual harassment under either state law or federal statute.

Forms of illegal sexual harassment can include someone having to hear derogatory comments about women in general, for instance.  It is also considered to be sexual harassment when an individual is subjected to uninvited and suggestive sexual advances. These acts can form the basis of a civil rights claim brought by the victim.

At the other end of the spectrum, sexual harassment escalates to forms of unwelcomed physical contact.  Sexual assault, or rape, of a co-worker is an extreme form of sexual harassment.  In these situations, criminal charges can be brought under the Texas Penal Code.

Sexual Harassment:  Discrimination in Violation of Civil Rights

Under Title VII of the Civil Rights Act of 1964, sexual harassment is defined by Congress as unlawful discrimination.  It makes discrimination based on race, color, religion, sex and national origin illegal in the United States.  The Texas Legislature has adopted its version of these discrimination protections in the Texas Commission on Human Rights Act (TCHRA).

Discrimination claims for sexual harassment in federal system are overseen by the Equal Employment Opportunity Commission (EEOC).  In Texas, similar discrimination claims based upon sexual harassment are filed with the Civil Rights Division of the Texas Workforce Commission (TWC).

Discrimination claims based upon sexual harassment involve protection of the individual’s constitutionally-protected civil rights.  Each case is investigated as an agency complaint within the state or federal system.  These are civil complaints that are resolved within the agency or by administrative hearing.  Sometimes, a civil rights action may be filed.

There are deadlines within which to file these discrimination claims; complaints must be filed within 180 days of the latest discriminatory act with the TWC and within 300 days for the EEOC.  Legally under both systems, you must allow the “administrative remedies” to be exhausted before you can file a civil rights lawsuit based upon sexual harassment.

There are also statutory caps placed upon the amount of damages that can be awarded in these lawsuits.  For instance, the EEOC advises that compensatory and punitive damages are capped as follows:

• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.

Sexual Harassment:  Assault Charges under Texas Penal Code §§22.01, 22.011

However, there are times when criminal charges are prosecuted based upon actions that come within the definition of sexual harassment.  In these instances, Texas law considers the actions to be criminal assaults under Texas Penal Code §§22.01 and 22.011.

These criminal prosecutions will proceed independently of any discrimination claim.  These are proceedings in the state criminal justice system, brought by prosecutors after arrests have been made by local law enforcement.  Damages are not awarded in a criminal case.

Sexual Harassment: Assault Charge

Pursuant to Texas Penal Code §22.01, an “assault” occurs when a person commits an offense if the person:

• intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
• intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
• intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Sexual Harassment: Sexual Assault Charge

Pursuant to Texas Penal Code §22.011, a “sexual assault” occurs when a person intentionally or knowingly:

(A)  causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

 (B)  causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

 (C)  causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

 (2)  regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:

 (A)  causes the penetration of the anus or sexual organ of a child by any means;

 (B)  causes the penetration of the mouth of a child by the sexual organ of the actor;

 (C)  causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

 (D)  causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

 (E)  causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

Upon conviction of criminal sexual harassment, sentencing can range from misdemeanor charges (assault) to serious felony time (sexual assault) as well as having to register as a sex offender and being barred from the legal possession of firearms.

Filing Civil Injury Damage Lawsuits Based Upon Sexual Harassment

When criminal sexual harassment cases are prosecuted, the complainants considering filing corresponding civil claims must do so after hiring their own attorney and proceeding in the civil system.  Sometimes, they will be forced to follow the existing structure of the TWC and EEOC process – including their strict time frames and caps on the amount of money that can be awarded in their case.

However, there are instances where an exception to this general rule exists for the sexual harassment claim.  In these situations, there is no cap placed upon the civil damage amount that can be awarded.

Texas Supreme Court: 2017 Steak N Shake Opinion

The Texas Supreme Court has recently clarified when sexual harassment claims filed in Texas courts circumvent the standard EEOC sexual harassment lawsuits and caps.  In 2017, a new area of direct liability was judicially created in cases where business owners (or their alter egos) can be sued for intentional torts (assault).  BC v. Steak N Shake Operations, Inc., 512 S.W.3d 276 (Tex. 2017).

Case Involved Sexual Harassment as Sexual Assault

The factual basis for the Steak N Shake opinion arose out of an allegation made by one of the restaurant’s employees (“B.C.”) that she was sexually assaulted by her supervisor during an overnight shift on company property in October 2011.

The assault was described as “the supervisor allegedly pushed her against a sink, grabbed her by the back of the head, and pulled her head toward him, trying to kiss her. B.C. repeatedly told her supervisor “no” and tried to push him away, but she was unable to escape. During the struggle, B.C. alleges, the supervisor began pulling down her pants while putting his hand up her shirt. At one point, B.C. was briefly able to break loose from her supervisor’s grasp only to then be pushed back against a restroom wall, where she was unable to escape him. The supervisor began to unbuckle his pants, exposing his genitals to B.C. Still holding on to B.C. and preventing her escape, the supervisor allegedly grabbed B.C.’s head, pulling it toward him. The supervisor then lost his balance and fell to the ground, allowing B.C. to finally escape and flee the restroom.” See Steak N Shake, 512 S.W.3d at 277-278.

Compare this description to the earlier language defining the crime of “sexual assault” in Texas Penal Code §22.011.  It is important to notice that while the facts appear to confirm that a criminal act took place at the restaurant, and the opinion confirms that a police report was made, any criminal proceeding would have been undertaken independently of this civil matter.

The civil case here involves the employee suing her employer (the restaurant) and the assailant (the supervisor) and deciding whether or not the civil rights / discrimination statutory limits on damage awards apply when a sexual assault is involved.

When Sexual Assault is “Gravamen” of Harassment Claim

In Steak N Shake, the Texas Supreme Court held that sexual assault victims are not bound by the discrimination / civil rights caps on damage awards otherwise placed upon sexual harassment claims.

Why the distinction?  It is explained that the key factor in determining whether remedies are defined within the statutory framework or if an award can be based upon common law is “where the gravamen of a plaintiff’s claims is no harassment, but rather assault.”  The Texas Commission on Human Rights Act (TCHRA) does not provide the exclusive remedy for sexual harassment in these assault matters and does not preempt a plaintiff’s common law assault claim. See Steak N Shake, 512 S.W.3d at 277, 282.

From the opinion:

“…the Legislature did not intend for individual assailants to receive, among other benefits, statutorily-capped damages and predictability for their employers simply because those assaults occurred in the workplace and not elsewhere.… We are not compelled to apply different reasoning when the employer, in legal effect, is the assailant.

“[To do otherwise] … we would effectively rule that any action by an employer, no matter how egregious or severe, is subject to the TCHRA’s administrative scheme so long as the conduct can be characterized as sexual harassment. Neither the TCHRA’s text nor its purpose, nor our prior holdings interpreting the statute, requires such an extreme result.”

Sexual Harassment Statutory Caps Cannot Shield against Sexual Assault Claim

Accordingly, sexual assault victims in Texas who were assaulted at their place of employment may well have a civil personal injury claim to be filed that is independent of any standard EEOC or TWC filing based upon sexual harassment as discrimination against their civil rights.

The Texas Supreme Court has explained that when sexual assault is involved, the civil right administrative protections against sexual harassment cannot be used as a shield by the perpetrator to avoid liability for the sexual assault (i.e., rape or attempted rape) and its resulting harm.

In these cases, the sexual assault victim may be able to file for personal injury damages (including exemplary or punitive damages) based upon common law causes of action such as:  assault, battery, negligence, gross negligence, and the intentional infliction of emotional distress.

Compensation can include past, present, and future damages, such as medical expenses, lost wages, pain and suffering, psychological therapy, and more.

Sexual Assault Personal Injury Claims in Texas

When sexual assault occurs at a place of employment, then it may be legally within the definition of “sexual harassment” and therefore a civil rights violation.  However, in Texas this will not preempt the perpetrators from being held liable for standard personal injury damages as defined in our state common law.

Sexual assaults are a form of sexual harassment that can be made the basis of a sometime significant Texas personal injury damages claim. 

In these situations others may also be included in the injury claim and lawsuit (as in the above case, where both the restaurant company and the supervisor were sued). Additional defendants may include (1) any employer managers, etc. who knew or should have known about the bad act but looked away and ignored it; as well as (2) anyone with a duty of care toward the plaintiff who failed to protect and prevent the sexual assault from occurring, such as a security agency; and (3) anyone who knew about the event and tried to hide what happened (cover it up) afterwards.

Sadly, instances of sexual harassment / assault on the job are actually pretty commonplace here in Texas.  In my criminal defense practice, I’ve had several cases where a small business owner taps or grabs employees inappropriately.

When these cases are extreme, meeting the criteria of a “sexual assault” as that is defined in the Texas Penal Code, the target of that assault may be able to pursue a standard personal injury damages claim against the employer and others (i.e., several defendants).  This is because the Texas Supreme Court has ruled that while technically the sexual assault is a form of sexual harassment, civil rights statutory caps do not apply in these cases.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Sex Crimes In Texas: Criminal Defense Overview.”