Workplace Sexual Assault vs Sexual Harassment

Workplace Sexual Assault vs Sexual Harassment

Workers can sue for both sexual assault and sexual harassment that occurs in the workplace. That’s true in all fifty states. But the state in which you work may be critical in determining how long you have to sue and how much you can collect in damages. This post looks at Texas but these same legal questions can arise anywhere.

To better understand the legal issues and the law in Texas, let’s look at a real example.

First, we don’t disclose the names of sexual assault victims. For this story we will use the initials “B.C.” to identify our female victim.

B.C. worked at the Steak N Shake restaurant in Frisco, Texas. She says she was sexually assaulted by her supervisor, Jose Ventura, during an overnight shift on company property in October 2011.

According to her testimony, B.C.’s supervisor had called her into work at about 10:00 p.m., an hour early for her normal shift, to take over as the lone server in the restaurant. On the night of the assault three people were working at the restaurant, a cook, B.C. and the supervisor.  Shortly after midnight, B.C. found her boss and the cook drinking beer in the parking lot.

B.C. admits that she joined them at different times throughout the night to take a break, smoking cigarettes and even having a sip of their beer. During one break, B.C. joined her supervisor in his vehicle to avoid the light rain that had started to fall.

After running out of cigarettes, the supervisor invited B.C. to accompany him on a drive to a nearby store to buy more. B.C. agreed, and after a short trip the two returned to work. Between 4:30 and 5:00 a.m., he invited B.C. to smoke another cigarette, but this time he invited her to the employee restroom due to the increasingly poor weather.

Until this point, she says her supervisor had not spoken nor acted in a sexually suggestive manner. Until then, they had talked about work and their families. Shortly after entering the bathroom, however, the supervisor allegedly pushed B.C. 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.

B.C. was quite shaken up by the ordeal and reported the incident to both the police and Steak N Shake. After completing an internal investigation, Steak N Shake was unable to confirm her allegations, concluding that the only portion of her story supported by evidence was that someone had smoked in the employee restroom. As a result, the supervisor was not terminated, nor was he transferred to another location.

Steak N Shake extended an unqualified offer for B.C. to return to work at any Steak N Shake location, but she instead opted to terminate her employment.

Not feeling that justice had been served, B.C. filed suit against both Ventura and Steak N Shake. Fast food night shift managers typically don’t earn much more than minimum wage. The deep pocket in the case was obviously Steak N Shake. She said the company should be liable because Ventura was a manager.

The trial court tossed her lawsuit on technical grounds. They said that she could only bring her claim under the Texas Commission on Human Rights Act. In some respects, the TCHRA makes it easier to bring sexual discrimination claims but that law has a very short time period in which one can sue and also limits damages.

The TCHRA applies to employers with 15 or more employees. In this case B.C. was covered by the law. The more important question, however, was whether that law applied under these facts. Was this sexual harassment or was it more?

The Texas Commission on Human Rights Act

The TCHRA is an antidiscrimination law. It protects employees against discrimination based on race, color, disability, religion, sex, national origin, age, or genetic information. In terms of sex discrimination, the law applies to sexual harassment.

The downside of the law is that a worker only has 180 days to bring a claim. That same worker must also exhaust the law’s administrative remedies before filing a lawsuit. And damages can be limited unless the actions were intentional. While the supervisor’s actions may have been intentional, any judgment against him would likely be uncollectible. Collecting punitive damages against the restaurant under the TCHRA would be almost impossible.

The real target in these cases is almost always the employer. They hired the supervisor, had a duty to supervise him, provided training, etc. More importantly, they are usually the only defendant with the ability to pay a judgment.

After the trial court dismissed B.C.’s case the Court of Appeals also sided with Steak N Shake. Only after several years did the Texas Supreme Court agree to take up the case.

Texas Supreme Court Rules that Sexual Assault Is Not Sexual Harassment

B.C. finally received justice when her case was heard by the Supreme Court. They recognized the difference between sexual harassment and sexual assault. Many states like Texas have a statutory scheme to address workplace discrimination claims. In fact, Texas (and many other states) base their law on the federal E.E.O.C. program.

According to the Texas Supreme Court, the purpose of the TCHRA is to:

“secure for persons in this state freedom from discrimination in certain employment transactions, in order to protect their personal dignity; make available to the state the full productive capacities of persons in this state; avoid domestic strife and unrest in this state;  preserve the public safety, health, and general welfare; and [to] promote the interests, rights, and privileges of persons in this state.

“[The TCHRA strikes a balance,] this balance affords an aggrieved party a claim and remedy, but it also limits potential claimants, provides defenses to employers otherwise liable for the actions of their employees, and establishes a public policy that favors resolution of sexual harassment claims by conciliation instead of litigation.”

Fair enough. It’s easier to make a claim but your damages are limited.

B.C.’s case wasn’t the typical hostile workplace or boorish behavior claim. B.C. was physically assaulted by her boss. Sexually assaulted.

Taking the evidence most favorable to B.C., the court concluded that her claim was for assault and not harassment. B.C. never testified that her supervisor offered her a promotion or tied sexual favors to job performance. Since this case was more about a physical assault and less about harassment, B.C.’s case will be sent back to the trial court. This means B.C. will receive her well-deserved day in court.

Clearly, the law in Texas now turns on whether a case is more about sexual assault versus garden variety harassment. Some cases like B.C.’s case are obvious but where will future courts draw the line? That will depend on the facts of each case. Here B.C. never said that her boss had acted in a sexually suggestive manner. The assault came out of nowhere and was completely unexpected. We wonder how courts will rule when an assault occurs after a long period of harassment.

The Supreme Court decision was in 2017, 6 years after the assault took place. Steak N Shake still wouldn’t let go, however. After much legal maneuvering the case is finally ready for trial, 9 years after the incident.

Most sexual assault cases never take anywhere near nine years. B.C. had to fight the case all the way to the Texas Supreme Court but in doing so, she scored a victory for women everywhere in the Lone Star state that suffered from sexual assaults.

What Does this Mean for Me?

The Texas Supreme Court is quite conservative. Many observers thought it would rule against B.C. It didn’t. Their decision is a great victory for workplace sexual assault victims in Texas.

Until this ruling, sexual assaults that took place at work were treated as sexual harassment or discrimination suits. That gave victims very little time to file (180 days), gave employers lots of defenses and capped how much money the victim could receive.

Now courts in Texas must look at the core of the case and determine whether the case is more akin to a sexual assault or to harassment. In this case, it appears that B.C.’s boss forcibly tried to pull up her shirt, tried to pull down her pants, exposed himself and violently tried to force her to perform a sexual act. In cases like that, it should be easier to prove assault. What will the court do if a woman is grabbed on the buttocks? It’s hard to predict. Courts will now have to sort out these cases carefully.

This case applied Texas law since that is where the incident took place. Many states have sexual discrimination laws much like the TCHRA. And typically, these laws limit damages and have 6 month or 1 year statute of limitations. The lessons here are important to women (and men) who are victims throughout the United States.

The lesson here is that even if your state has 2, 4, 6 or 10 year statute of limitations for sexual assault, don’t wait if the assault took place at work or involved a co-worker. Depending on the state and details of the crime, you might have far less time to bring a case than you thought. Make sure you speak with an experienced sexual assault victim’s lawyer.

Since the #MeToo movement began, laws and court decisions are changing rapidly. In many states you only have 6 months to file a claim. Don’t simply believe that a longer sexual assault statute of limitations applies.

Were You Sexually Assaulted at Work?

Our sexual assault victim lawyers and national network are dedicated to stopping workplace harassment and assaults. While only prosecutors and the police can arrest offenders, we hold those responsible for these horrible crimes financially responsible.

Some criminal courts and prosecutors will help victims get an order of restitution but those are not as helpful as they appear. The restitution order can only be entered against the offender who is convicted of a crime. Sexual predators don’t have great employment prospects and most often never pay full restitution.  What a good sexual assault victim’s lawyer will do is identify employers, property owners and others that share responsibility for the offender’s actions. We seek the deep pockets in the case.

To learn more, visit our sexual assault victims’ information page. Ready to see if you have a claim? Contact us online, by email [hidden email] or by phone at 888.249.6944. All inquiries are protected by the attorney – client privilege and kept strictly confidential.

*Attorney Brian Mahany is a former police officer and prosecutor. He also was a director of the Family Violence Center and volunteer with the Sexual Assault Crisis and Assault Center.


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