FILED
15-0404
6/22/2015 1:13:57 PM
tex-5767044
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

No. 15-0404
In the Supreme Court of Texas
B.C.,
Petitioner,
v.
STEAK N SHAKE OPERATIONS, INC.,
Respondent.
On Petition for Review from the Fifth Court of Appeals at Dallas
Court of Appeals No. 05-14-00649-CV

AMICI CURIAE BRIEF
IN SUPPORT OF PETITION FOR REVIEW
BECK REDDEN LLP
Gretchen S. Sween
State Bar No. 24041996
gsween@beckredden.com
515 Congress Avenue, Suite 1900
Austin, TX 78701
(512) 708-1000
(512) 708-1002 (Fax)
Pro Bono Counsel for Amici Curiae,
Texas Association Against Sexual
Assault, SafePlace, and Institute on
Domestic Violence & Sexual Assault
at The University of Texas at Austin

 TABLE OF CONTENTS
TABLE OF CONTENTS ..........................................................................................i
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF INTERESTS.................................................................................v
INTRODUCTION...................................................................................................1
FACTUAL BACKGROUND .................................................................................... 2
ARGUMENT & AUTHORITIES ..............................................................................4
I.

THE PETITION SHOULD BE GRANTED BECAUSE THE TCHRA
DOES NOT PREEMPT THE KIND OF SEXUAL ASSAULT CLAIM
AT ISSUE HERE. ...................................................................................... 4
A.

Conflating “Sexual Harassment” and “Sexual
Assault” Is Legally Untenable. ................................................... 4
1.

Sexual harassment is a form of workplace
discrimination only recently recognized as
unlawful. ........................................................................... 5

2.

Sexual assault is a felony. ................................................. 9

B.

Reading the TCHRA as Preempting Intentional Tort
Claims Against an Employer Simply Because the
Underlying Assault Is Sexual in Nature Is at Odds
with Legislative Intent. ............................................................. 10

C.

Preemption Doctrine, as Applied to Petitioner’s
Claim, Exacerbates a Conflict between State and
Federal Employment Law. ........................................................ 13

CONCLUSION & PRAYER FOR RELIEF............................................................... 17
CERTIFICATE OF SERVICE ................................................................................19
CERTIFICATE OF COMPLIANCE .........................................................................20

i

 TABLE OF AUTHORITIES
CASES

Page(s)

Brock v. United States,
64 F.3d 1421 (9th Cir. 1995) ............................................................13, 14, 15, 16
Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998) ........................................................................................ 9, 14
Cash Am. Int’l, Inc. v. Bennett,
35 S.W.3d 12 (Tex. 2000)................................................................................... 10
CBOCS West, Inc. v. Humphries,
553 U.S. 442 (2008) ............................................................................................ 10
Deramo v. Consol. Rail Corp.,
607 F. Supp. 100 (E.D. Pa. 1985) ....................................................................... 11
El Apple Ltd. v. Olivas,
370 S.W.3d 757 (Tex. 2012) .............................................................................. 13
Faragher v. City of Boca Raton,
524 U.S. 775 (1998) ........................................................................................ 9, 14
Hall v. Sonic Drive-In of Angleton, Inc.,
177 S.W.3d 636 (Tex. App.—Houston
[1st Dist.] 2005, pet. denied)............................................................................... 13
Howe v. Yellowbook, USA,
840 F. Supp. 2d 970 (N.D. Tex. 2011) ............................................................... 14
Jones v. Halliburton Co.,
791 F. Supp. 2d 567 (S.D. Tex. 2011) ................................................................ 11
Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986) (Rehnquist, J.) ....................................................................... 7
Monfore v. United States,
1995 WL 66786 (9th Cir. Feb. 16, 1995) ........................................................... 11
Otto v. Heckler,
781 F.2d 754, amended, 802 F.2d 337
(9th Cir. 1986)..................................................................................................... 12
ii

 Pennsylvania State Police v. Suders,
542 U.S. 129 (2004) .............................................................................................. 8
Pfau v. Reed,
125 F.3d 927 (5th Cir. 1997) .............................................................................. 14
Pfau v. Reed,
525 U.S. 801 (1998) ............................................................................................ 14
Ramsey v. AT & T Corp.,
1997 WL 560183 (E.D. Pa. Aug. 22, 1997) ....................................................... 11
Santiero v. Denny’s Restaurant Store,
786 F. Supp. 2d 1228 (S.D. Tex. 2011) .............................................................. 14
Waffle House, Inc. v. Williams,
313 S.W.3d 796 (Tex. 2010) .......................................................................passim
STATUTES
Texas Commission on Human Rights Act (TCHRA),
TEX. LAB. CODE § 21.001, et seq. ................................................................passim
TEX. LAB. CODE § 21.001(1) .................................................................................... 13
TEX. PENAL CODE § 15.01 .......................................................................................... 9
TEX. PENAL CODE § 22.011(a) ................................................................................... 9
OTHER AUTHORITIES
110 CONG. REC. 2581 ................................................................................................. 8
Cary Franklin, Inventing the “Traditional Concept”
of Sex Discrimination, 125 HARVARD L. REV. 1307
(April 2012) .......................................................................................................... 6
Catharine A. MacKinnon, SEXUAL HARASSMENT OF
WORKING WOMEN (Yale UP 1976) ...................................................................... 7

iii

 Emily J. Sack, From the Right of Chastisement to the
Criminalization of Domestic Violence: A Study in
Resistance to Effective Policy Reform,
32 THOMAS JEFFERSON L. REV. 31 (2009) ............................................................ 8
http://www.quantico.marines.mil/Portals/147/Docs/Resources/
RCO/RCO_Attachment%201%20to%20USMC%20RFQ%2
0M00264-12-T-0119.pdf (last visited June 19, 2015) ........................................ 10
Kathleen Sullivan, CONSTITUTIONAL CONTEXT 22
(John Hopkins UP 2007)....................................................................................... 8
Sandra Day O’Connor, THE MAJESTY OF THE LAW
161-62 (2003)........................................................................................................ 6
Sonia Pressman Fuentes, EAT FIRST—YOU DON’T
KNOW WHAT THEY’LL GIVE YOU 131 (1999) ...................................................... 6
U.S. Department of Justice, available at
http://www.justice.gov/ovw/sexual-assault (last visited
June 19, 2015) ....................................................................................................... 9
U.S. Equal Employment Opportunity Commission, “Facts
About Sexual Harassment,” available at
http://www.eeoc.gov/eeoc/publications/fs-sex.cfm (last
viewed June 19, 2015) .......................................................................................... 5
U.S. Equal Employment Opportunity Commission, “Policy
Guidance on Current Issues of Sexual Harassment,” available
at http://www.eeoc.gov/policy/docs/currentissues.html ....................................... 7
William N. Eskridge, Jr., et al., CASES AND MATERIALS
ON LEGISLATION: STATUTES AND THE CREATION OF
PUBLIC POLICY 14-15 (4th ed. 2007) .................................................................... 6

iv

 STATEMENT OF INTERESTS1
Texas Association Against Sexual Assault (TAASA), a leading voice of the
sexual-assault prevention movement in Texas, is a non-profit organization
committed to ending sexual violence through education, prevention, and advocacy.
TAASA also supports sexual-assault survivors in their quest for healing and
justice, providing resources for victims of, and others affected by, sexual assault.
SafePlace is an Austin-based non-profit organization committed to ending
sexual and domestic violence through safety, healing, prevention, and social
change. Its services include a 24-hour help line, access to an emergency shelter,
counseling, legal advocacy, community education, and support for victims of
domestic violence and sexual assault.
The Institute on Domestic Violence & Sexual Assault (IDVSA) is a
collaboration among entities within The University of Texas at Austin: the School
of Social Work, School of Law, School of Nursing, and the Bureau of Business
Research.

IDVSA exists to advance knowledge about interpersonal violence

through research, education, and service in multidisciplinary, strategic partnerships
with researchers, educators, practitioners, policy makers, and other members of the
community. IDVSA focuses in particular on the concerns of human trafficking,
domestic violence, resiliency in child abuse professionals, and sexual assault.
1

No party paid for or contributed to the preparation of this amici curiae brief. Counsel for Amici
provided its services pro bono.
v

 INTRODUCTION
TAASA, SafePlace, and IDVSA (collectively, Amici) urge this Court to
review this case, reverse the decision below, and take this opportunity to clarify the
critical distinction between “sexual harassment” and “sexual assault” as a matter of
law.
If permitted to stand, the Dallas Court of Appeals’ decision will constitute a
major setback for both the legal rights and safety of victims of sexual assault in
Texas. The opinion also enlarges a rift between Texas and federal civil rights laws,
which are supposed to work in harmony. The opinion does so because it rests on
the incorrect premise that “sexual harassment” and “sexual assault” are synonyms.
Then, relying on this incorrect premise, the court concludes that the existence of a
cause of action to address the former precludes the right to pursue a legal remedy
based on the latter. This conception of the law is inaccurate and injurious. As
advocates for victims of sexual assault charged with advising our clients about
relevant Texas law, Amici are deeply troubled by the decision the Petitioner asks
this Court to review. When an assault is sexual in nature and perpetrated by a
manager at a workplace that does not mean that the victim is barred from pursuing a
long-standing common-law tort claim. To the extent that any precedent from this
Court has permitted Texas appellate and trial courts to adopt this erroneous legal
conception, Amici urge this Court to step in and right the wrong.
1

 FACTUAL BACKGROUND
B.C. was assaulted by her manager while she was at work. The assault was
violent and sexual in nature. Pet. at 1-3. After pinning her behind a bathroom
door, pulling off his pants, and endeavoring to force her to perform oral sex, the
assailant, intent on perpetrating a rape, was only thwarted because, according to the
employer’s own brief, he “lost his balance and fell to the floor, allowing [B.C.] to
exit through the door.” Brief of Appellee at 8.
Following the assault, B.C. filed the underlying lawsuit, initially asserting
various common-law claims against both her employer and the assailant/manager.
She did not sue for “sexual harassment” under the Texas Labor Code, formerly
known as the Texas Commission on Human Rights Act (TCHRA). She did not
allege facts suggesting either a quid pro quo sexual demand or a hostile workplace
environment created by sex discrimination. She alleged that she was the victim of
a single attack that occurred late at night in a bathroom while she was at work,
perpetrated by the person then in charge of the operation.
The trial court granted summary judgment in favor of the employer and the
assailant/manager. On appeal, B.C. elected to pursue only one claim: for commonlaw assault against her employer. She alleged that her assailant/manager was the

2

 employer’s “vice principal” such that his intentional tort could be imputed to the
company as a matter of Texas law.2
The Dallas Court of Appeals affirmed the dismissal based on the following
erroneous proposition:

“the gravamen of B.C.’s complaint … is sexual

harassment/sexual assault.” Pet. App. 5. The Dallas Court of Appeals then relied
on this Court’s decision in Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex.
2010) to find that the TCHRA preempted B.C.’s intentional tort claim based on an
assault because it was sexual in nature. Pet. App. 4-5.
Amici file this brief in support of granting B.C.’s Petition.

2

The court of appeals’ decision does not address whether the assailant/manager was a “vice
principal” as a matter of fact, an issue contested before the trial court. Therefore, Amici offer no
opinion here as to the application of the law that permits imputing the intentional torts of a
company’s vice principals to the company itself.
3

 ARGUMENT & AUTHORITIES
I.

THE PETITION SHOULD BE GRANTED BECAUSE THE TCHRA DOES NOT
PREEMPT THE KIND OF SEXUAL ASSAULT CLAIM AT ISSUE HERE.
The Court should grant the Petition to clarify the legal distinction between

“sexual harassment” and “sexual assault.” The Court should also clarify that the
TCHRA, which recognizes claims for workplace “sexual harassment,” does not
preclude a cause of action based on a “sexual assault” when the intentional tort can
be imputed to an employer and it occurred while the victim was at work.
A.

Conflating “Sexual Harassment” and “Sexual Assault” Is Legally
Untenable.

“Sexual assault” and “sexual harassment” are not the same thing. Treating
the two concepts as synonyms is both legally and logically unsound. Just as a
murder may also involve an assault, and a murder could be used to prove that an
assault had occurred, that does not mean that the two legal terms “murder” and
“assault” are interchangeable. Likewise, the fact that a sexual harassment claim
could be proven by establishing that an assault had occurred does not foreclose a
free-standing claim premised on a sexual assault.

Yet the decision below

presumes, incorrectly, that because a sexual assault could, in some circumstances,
be used to prove sexual harassment, then the latter subsumes the former as a matter
of law.

4

 The Dallas Court of Appeals asserts, without explaining, that “the offensive
conduct attributed to B.C.’s supervisor in her petition may have constituted an
assault, but it was also actionable as sexual harassment under TCHRA.” Pet. App.
5.

Then, again without explanation, the court announces that “[b]ecause the

gravamen of B.C.’s complaint against Steak N Shake is sexual harassment/sexual
assault by her supervisor,” her assault claim was preempted by the TCHRA. Id.
But the “gravamen” of B.C.’s assault claim is not an allegation of workplace
discrimination in the form of sexual harassment. Even the court’s syntax—
whereby “sexual harassment/sexual assault” are treated as a single term—exposes
the error.
1.

Sexual harassment is a form of workplace discrimination
only recently recognized as unlawful.

Sexual harassment encompasses a particular kind of discrimination that
happens at work and affects the terms and conditions of employment. The EEOC
defines sexual harassment as follows:
Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute sexual
harassment when this conduct explicitly or implicitly affects an
individual’s employment, unreasonably interferes with an individual’s
work performance, or creates an intimidating, hostile, or offensive
work environment.3

3

See U.S. Equal Employment Opportunity Commission, “Facts About Sexual Harassment,”
available at http://www.eeoc.gov/eeoc/publications/fs-sex.cfm (last viewed June 19, 2015).
5

 Until fairly recently, this type of conduct was not illegal. One need only be
familiar with the social mores depicted in Mad Men to have some sense of the
sexually oriented harassment that was ubiquitous in the workplace back when Title
VII was enacted in 1964. Demeaning treatment of women in the workplace was
not only common in the early 1960s, such treatment was a logical corollary of the
widespread view that “[w]omen’s customary and legal obligations to their
husbands and children served as central justifications for their exclusion from the
public sphere, and women’s disenfranchisement was considered essential to the
preservation of family harmony.”

Cary Franklin, Inventing the “Traditional

Concept” of Sex Discrimination, 125 HARVARD L. REV. 1307, 1324 (April 2012).
Indeed, when Congress was considering Title VII’s passage, the inclusion of a ban
on employment discrimination based on “sex” was an afterthought—and one that
many saw as an effort to derail the legislation.4 Moreover, for some time after
Title VII was enacted, mass confusion existed as to what exactly Congress had
intended in banning discrimination based on “sex.” See, e.g., Sonia Pressman
Fuentes, EAT FIRST—YOU DON’T KNOW WHAT THEY’LL GIVE YOU 131 (1999)
4

The word “sex” was added to Title VII at the eleventh hour through an amendment offered by
Virginia Representative Howard W. Smith. Representative Smith was a life-long opponent of
civil rights legislation and a signatory of the Southern Manifesto, which expressly denounced
Brown v. Board of Education and vowed to see it reversed. Therefore, many legal historians
have seen his “sex” amendment as an attempt to kill the bill. See, e.g., Sandra Day O’Connor,
THE MAJESTY OF THE LAW 161-62 (2003); William N. Eskridge, Jr., et al., CASES AND
MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 14-15 (4th ed.
2007).
6

 (describing how the EEOC was caught off guard when vast numbers of claims
brought to the agency involved sex, not race, discrimination and raised concerns
such as whether employers had “to hire women for jobs traditionally reserved for
men,” whether airlines could “continue to ground or fire stewardesses when they
married or reached the age of thirty-two,” and whether “school boards have to keep
teachers on after they become pregnant”).
The term “sexual harassment” was not even coined until the mid-1970s by
activists and lawyers seeking a means to describe a particular kind of workplace
sex discrimination. See, e.g., Catharine A. MacKinnon, SEXUAL HARASSMENT OF
WORKING WOMEN (Yale UP 1976). Later, during the Carter administration, the
EEOC Commissioner adopted the first policies defining sexual harassment as a
kind of sex discrimination—but sexual harassment was not yet technically against
the law.5

Finally, in 1986, the Supreme Court of the United States, in an

unanimous decision, accepted “sexual harassment” as a form of discrimination and
defined it as including claims based on both quid pro quo and a hostile workplace
environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)

5

See U.S. Equal Employment Opportunity Commission, “Policy Guidance on Current Issues of
Sexual Harassment,” available at http://www.eeoc.gov/policy/docs/currentissues.html
(explaining that the EEOC first issued guidelines announcing its view that sexual harassment
was a violation of Section 703 of Title VII in 1980 and established “criteria for determining
when unwelcome conduct of a sexual nature constitutes sexual harassment, defining the
circumstances under which an employer may be held liable, and suggesting affirmative steps an
employer should take to prevent sexual harassment”) (last visited June 19, 2015).
7

 (Rehnquist, J.) (“Without question, when a supervisor sexually harasses a
subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on
the basis of sex”). A plaintiff alleging sexual harassment does not, however, have
to prove that a physical assault occurred to prevail. See, e.g., Pennsylvania State
Police v. Suders, 542 U.S. 129 (2004) (recognizing sexual harassment claim based
solely on offensive comments and other verbal harassment).
The codification of a cause of action for “sexual harassment” was
completely independent of state common-law causes of action arising from assault,
which can be traced back to English common law. Assaults experienced primarily
by women—including domestic and sexual assaults—were long subordinated to
assaults perpetrated by males against males.6 Nevertheless, it is indisputable that
the law recognized sexual assault as a basis for an intentional tort claim well before
the law recognized sexual harassment as a form of sex discrimination, a claim that
does not necessarily involve an assault of any kind.

6

Unfortunately, the history of the American legal system is replete with instances in which
crimes largely affecting female victims have been condoned or given subordinate status. See
Emily J. Sack, From the Right of Chastisement to the Criminalization of Domestic Violence: A
Study in Resistance to Effective Policy Reform, 32 THOMAS JEFFERSON L. REV. 31 (2009)
(tracing back to the country’s founding recognition in American law of a husband’s legal right to
“chastise” his wife and describing the legal evolution of efforts to address domestic violence).
Under the common law tradition of coverture, inherited from England, women “belonged, first of
all, to their fathers; then to their husbands or to their nearest male relative. They had no
command over their own property. They were not supposed to be equal in any way[.]” 110
CONG. REC. 2581 (statement of Republican Rep. E. St. George during the floor debate over Title
VII); see also Kathleen Sullivan, CONSTITUTIONAL CONTEXT 22 (John Hopkins UP 2007).
8

 Only in the late 1990s did the Supreme Court hold that employers can be
liable for their employees’ sexual harassment. See Faragher v. City of Boca Raton,
524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
2.

Sexual assault is a felony.

By contrast, sexual assault is a criminal offense. Generally, it is defined as
intentional sexual contact characterized by the use of force, threats, intimidation, or
abuse of authority and involves a victim who does not or cannot consent.7
Specifically, under Texas law, a person commits the offense of “sexual assault”
if the person:
(1) 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[.]
TEX. PENAL CODE § 22.011(a); see also id. § 15.01 (describing the offense of
criminal attempt). The EEOC and the Texas Workforce Commission are not
responsible for defining and addressing the crime of sexual assault, which can

7

See, e.g., the definition provided by the U.S. Department of Justice, available at
http://www.justice.gov/ovw/sexual-assault (last visited June 19, 2015).
9

 occur anywhere. It is an offense that involves physical contact, which sexual
harassment may not involve, and the offense can occur between any persons in any
location, whereas sexual harassment is, fundamentally, a workplace concern.
The U.S. military certainly understands the distinction between “sexual
harassment” and “sexual assault” and takes pains to educate members of the armed
forces about the distinction.8 That Texas civil law would blur the distinction such
that the mere existence of a cause of action to address the “lesser” (though
decidedly serious) wrong would preclude the ability to pursue long-standing legal
remedies based on a vice principal’s criminal conduct is, in a word, alarming.
B.

Reading the TCHRA as Preempting Intentional Tort Claims
Against an Employer Simply Because the Underlying Assault Is
Sexual in Nature Is at Odds with Legislative Intent.

The TCHRA was, like Title VII, “designed to supplement, rather than
supplant, existing laws and institutions relating to employment discrimination.”
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 455 (2008) (citation omitted). To
read these bedrock civil rights laws as depriving individuals of other, pre-existing
remedies for harms that can be a far more profound threat to life and liberty, makes
little sense. Cf. Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000)
(explaining that statutes must not be construed to abolish common-law claims unless
8

See, e.g., U.S. Sexual Assault Prevention and Response Office, Sexual Assault vs. Sexual
Harassment, available at
http://www.quantico.marines.mil/Portals/147/Docs/Resources/RCO/RCO_Attachment%201%20
to%20USMC%20RFQ%20M00264-12-T-0119.pdf (last visited June 19, 2015).
10

 the statutory language clearly dictates that result). This Court’s decision in Waffle
House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010), cannot be read to go that far.
Courts applying Waffle House understand that a plaintiff may not rely on the
same set of facts to plead two claims against an employer, one under the TCHRA for
sexual harassment and one for negligence, just as a Title VII plaintiff cannot sue an
employer for sexual harassment and “negligence and negligent undertaking” based on
the same facts. Jones v. Halliburton Co., 791 F. Supp. 2d 567, 591 (S.D. Tex. 2011).
But Waffle House does not preclude stand-alone claims for assault—an intentional
tort—where no sexual harassment claim was pled or would seem to fit the facts
alleged.9 Until now, “[i]n cases where the plaintiff’s tort claims arose from a different
factual predicate than her claims under the antidiscrimination statute,”—or where her
claims do not correspond to the elements of the antidiscrimination statute—”courts
have permitted the tort claims to proceed.” Id. at 595 (citing cases).10

9

Based on the facts as presented in the Dallas Court of Appeals’ decision, in the Petition, and in
Appellee’s Brief below, it is clear that B.C. has not alleged discrimination; she has alleged that
she was the victim of a felony assault, intentionally perpetrated by a person charged with
managing the job site where she was working at the time.
10

E.g., Monfore v. United States, 1995 WL 66786, *3 (9th Cir. Feb. 16, 1995) (plaintiff’s
defamation claim not preempted by Title VII because it was based upon separate factual
predicate than her allegations of sexual harassment); Ramsey v. AT & T Corp., 1997 WL 560183,
*5 (E.D. Pa. Aug. 22, 1997) (fraud, negligent misrepresentation, and defamation claims not
preempted by Pennsylvania antidiscrimination statute because claims might be based on actions
separate from claim of age discrimination); Deramo v. Consol. Rail Corp., 607 F. Supp. 100, 102
(E.D. Pa. 1985) (plaintiff’s breach of contract claim, based upon his detrimental reliance upon
representations made by defendants, not preempted by Pennsylvania antidiscrimination statute
because it was factually different from plaintiff’s age discrimination claim).
11

 The net result of the Dallas Court of Appeals’ decision is to upend Title VII
and the TCHRA: permitting discrimination against a female plaintiff, who was the
victim of an assault that happened to be sexual in nature, by depriving her of a state
common-law remedy that existed independently of, and well before, “sexual
harassment” was legally cognizable. That is, the Dallas Court of Appeals’ holding
seems to punish a litigant “because of” her sex—one of the harms that Title VII
and the TCHRA were enacted to prevent.
B.C. did not allege that she was assaulted as an act of discrimination; yet
according to the Dallas Court of Appeals, because she was sexually assaulted by
her employer’s vice principal at work, her only recourse against her employer
would be a sexual harassment claim—even if the facts do not fit that cause of
action. The TCHRA does not mandate that sexual assaults be given inferior legal
status to other types of assaults. “An assault is an assault, whether it is sexually
motivated or not.” Waffle House, 313 S.W.3d at 815 (O’Neill, J., dissenting); see
also Otto v. Heckler, 781 F.2d 754, 757, amended, 802 F.2d 337 (9th Cir. 1986)
(citation omitted) (“[T]orts which constitute highly personal violations[s] beyond
the meaning of discrimination [are] separately actionable.”).

12

 C.

Preemption Doctrine, as Applied to Petitioner’s Claim,
Exacerbates a Conflict between State and Federal Employment
Law.

This case is also important to the state’s jurisprudence because the Dallas
Court of Appeals’ decision amplifies a dissonance between state and federal
employment discrimination law. Yet, as this Court well knows, “[o]ne of the
TCHRA’s purposes is to harmonize state and federal employment discrimination
law.” El Apple Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012) (citing TEX. LAB.
CODE § 21.001(1)).
Federal courts do not construe Title VII as preempting personal-injury
claims based on a supervisor’s sexual assaults. See, e.g., Brock v. United States, 64
F.3d 1421 (9th Cir. 1995). Brock’s rationale is entirely persuasive. The decision
emphasizes that, although a sexual assault may be “sufficient to establish a claim
of sexual discrimination, that conduct also constitutes more than sexual
discrimination.” Id. at 1423 (citing cases) (emphasis added). Therefore, Brock
holds that “Title VII is not the exclusive remedy for federal employees who suffer
‘highly personal’ wrongs.” Id. (quoting cases); see also Hall v. Sonic Drive-In of
Angleton, Inc., 177 S.W.3d 636, 649-50 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied) (explaining that the common-law tort of assault exists to redress
personal injury caused by offensive physical contact or the threat of imminent
bodily injury).

13

 As B.C.’s Petition explains, multiple federal and state courts have followed
the Ninth Circuit’s precedential decision in Brock—including a federal court in
Texas quite recently. See Santiero v. Denny’s Restaurant Store, 786 F. Supp. 2d
1228, 1235-36 (S.D. Tex. 2011) (following Brock and rejecting preemption
argument).11 The Dallas Court of Appeals’ decision below does not mention Brock
or the conflict between the decision in this case and long-standing federal law
addressing the identical issue.
Federal courts in Texas have expressly recognized that this Court’s Waffle
House holding does not extend as far as it has been stretched here. See, e.g., Howe
v. Yellowbook, USA, 840 F. Supp. 2d 970, 980-81 (N.D. Tex. 2011) (rejecting
notion that Waffle House can be read as precluding claim for fraudulent
misrepresentation in a suit also involving Title VII claims); Santiero, 786 F. Supp.
2d at 1235-36 (finding intentional torts brought against employer based on a sexual
assault of employee/plaintiff by manager were not preempted).
Waffle House does not instruct that an intentional tort claim is preempted if
based on an assault that was sexual in nature. Waffle House did not even involve

11

By contrast, any reliance on the Fifth Circuit’s decision in Pfau v. Reed, 125 F.3d 927 (5th Cir.
1997) would be unfounded. First, that case did not involve allegations of assault. Instead, it
involved claims for sexual harassment and intentional infliction of emotional distress based on
the identical facts. Second, the judgment was vacated and the case remanded for reconsideration
after the Supreme Court recognized for the first time that employers could be held liable for
sexual harassment perpetrated by a supervisor. See Pfau v. Reed, 525 U.S. 801 (1998) (vacating
Fifth Circuit’s judgment and remanding for reconsideration in light of Faragher and Ellerth).
14

 an intentional tort claim against an employer. Here are a few of the ways the case
is distinguishable from B.C.’s case:
In Waffle House, the plaintiff had sued the employer for both
sexual harassment under the TCHRA and negligent supervision
based on the same facts. B.C. did not bring any TCHRA claims or
allege facts suggesting workplace discrimination; the claim at issue
here focuses solely on intentionally assaultive conduct.
In Waffle House, the offensive conduct in question was “boorish
behavior” not a physical attack and attempted rape.
In Waffle House, there was no allegation that the harasser was the
employer’s “vice principal” whose intentional tort could be
imputed to the employer. By contrast, B.C. alleges that her
assailant was the employer’s vice principal, such that the
employer’s liability sounds in tort, not employment law.
Waffle House begins with the premise that preemption is justified “when the
complained-of negligence [of the employer] is entwined with the complained-of
harassment.” Id. at 799 (emphasis added).12 But B.C. did not sue for negligence or
sexual harassment; she pursues recovery only for a personal injury caused by an
assault—thus there is no “entwining” of claims based on the same facts.
D.

If Waffle House Requires a Finding that the TCHRA Preempts
Petitioner’s Claim, Then Waffle House Should Be Reconsidered.

Waffle House does not mandate the result below, which should be reversed.
But to the extent that Waffle House itself can be seen as creating a rift between
state and federal law in an area that is supposed to be uniform, it should be
12

Both Brock, 64 F.3d at 1423, and Waffle House, 313 S.W.3d at 799, note the availability of
claims for state tort remedies against an individual assailant.
15

 revisited. The Dallas Court of Appeals has extended Waffle House so that a small
rift now has the capacity to swallow up an entire doctrinal area of law. Brock, by
contrast, rejects the analytical error that Waffle House seems to invite (and about
which Justice O’Neill, dissenting in Waffle House, warned).13 As a matter of basic
logic, a supervisor’s attack of a subordinate “cannot simultaneously extend beyond
discrimination for the purposes of a suit against [the assailant] individually, and
reduce to simple sexual discrimination for the purposes [of] her suit against the
[employer].” Brock, 64 F.3d at 1423. As Brock recognizes, permitting such a
result “would contravene the basic purposes of Title VII.” Id. at 1424. This is why
Brock and its progeny permit bringing tort actions against an employer for
negligence/negligent supervision where the harm alleged was “highly personal,” as
is alleged here.

Id. at 1423-24.

Waffle House, by contrast, found

negligence/negligent supervision claims preempted—at least when the employee
had also alleged sexual harassment under the TCHRA and the facts of the two
claims were “entwined.” 313 S.W.3d at 799.

13

Justice O’Neill warned that “[t]he Court’s denial of common law protection for a subset of
assault that is sexually motivated adds insult to injury.” 313 S.W.3d at 814. While Justice
O’Neill agreed that the TCHRA preempts negligent-supervision claims against employers “based
on harassment” she was rightfully concerned about construing the TCHRA as “preempt[ing]
assault-based claims merely because the perpetrator sexually harassed the victim too.” Id. In
any event, the claim against the employer at issue here is an intentional tort, not a negligence
claim, and the claim is not “entwined” with a sexual harassment claim.
16

 Ultimately, however, no authority or sound policy supports the conclusion
that Title VII or the TCHRA precludes liability for tort damages where the harm
alleged was solely assaultive, as is true here. Such a result turns these bedrock
civil rights laws inside out—permitting laws that were conceived as advancements
in employment law into reductions in the scope of legal remedies long available to
address serious wrongs under the common law. It is difficult to imagine that, had
B.C. been a male subordinate who sued his employer after his male supervisor
assaulted him for failing to take out the garbage, that the result would have been
the same. The difference here is one that hinges entirely on “sex.” As a result,
Texas law—at least as applied within the jurisdiction of the Dallas Court of
Appeals—represents a disturbing outlier.

CONCLUSION & PRAYER FOR RELIEF
For the foregoing reasons, Amici urge the Court to grant the Petition and
reverse the decision of the Dallas Court of Appeals.

17

 Respectfully submitted,
BECK REDDEN LLP
By: /s/ Gretchen S. Sween
Gretchen S. Sween
State Bar No. 24041996
gsween@beckredden.com
515 Congress Avenue, Suite 1900
Austin, TX 78701
(512) 708-1000
(512) 708-1002 (Fax)
Counsel for Amici Curiae,
Texas Association Against Sexual
Assault, SafePlace, and Institute on
Domestic Violence & Sexual Assault at
The University of Texas at Austin

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 CERTIFICATE OF SERVICE
I hereby certify that on June 22, 2015, a true and correct copy of the
foregoing Amici Curiae Brief in Support of Petition for Review has been served on
all counsel of record by the e-filing service provider, if registered, otherwise by
First Class Mail, as follows:
Counsel for Petitioner:
Matthew J. Kita
matt@mattkita.com
P.O. Box 5119
Dallas, TX 75208
Counsel for Respondent:
Christopher L. Kurzner
James F. Parker III
Kurzner PC
1700 Pacific Avenue, Suite 1870
Dallas, TX 75201
Warren Keith Paxton, Jr.
201 West Virginia
McKinney, TX 75069
/s/ Gretchen S. Sween
Gretchen S. Sween

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 CERTIFICATE OF COMPLIANCE
1.
This brief complies with the type-volume limitation of
Tex. R. App. P. 9.4 because it contains 4,227 words, excluding the parts of the
brief exempted by Tex. R. App. P. 9.4(i)(2).
2.
This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.
Dated: June 22, 2015.
/s/ Gretchen S. Sween
Gretchen S. Sween
Pro Bono Counsel for Amici Curiae,
Texas Association Against Sexual
Assault, SafePlace, and Institute on
Domestic Violence & Sexual Assault at
The University of Texas at Austin

20