The Texas Supreme Court has ruled that an employee can’t sue for both sexual harassment under the Texas Commission on Human Rights Act (TCHRA) and for negligent supervision and retention. The court said that the TCHRA’s specific antiharassment remedy is an employee’s only recourse when the complained-of negligence is entwined with the harassment.

What happened. “Tanya” was a Waffle House waitress from July 2001 to February 2002. She was continually subjected to offensive sexual comments and touching by a cook, and she made multiple complaints. After her complaint to a division manager was ignored, she quit and filed a complaint with the Texas Commission on Human Rights.

In April 2003, Tanya sued in state court, alleging sexual harassment under the TCHRA and a common-law claim for negligent supervision and retention of the cook. The jury found that Waffle House was negligent, and the trial court awarded Tanya $425,000 in compensatory damages and $425,000 in punitive damages.

What the court said. On appeal, Waffle House argued that the negligent supervision and retention claim should fail because the TCHRA provides the exclusive remedy for workplace sexual harassment. The differences between a common-law claim for negligence and the specific statutory claim for harassment include that (1) a TCHRA action requires an exhaustion of administrative remedies; (2) under the TCHRA, the employee must prove not only that the harassment was offensive, but also affected the “terms, conditions, or privileges of employment”; (3) there is an affirmative defense for hostile work environment claims; and(4) the TCHRA provides that injunctive remedies and its compensatory and punitive damages are capped at relatively modest amounts.

The court concluded that if the claim for negligent supervision and retention was allowed, the special rules of the TCHRA could be circumvented in any case where the alleged sexual harassment included even the slightest physical contact. Waffle House, Inc. v. Jones, Texas Supreme Court, No. 07-0205 (2010).

Point to remember: In sexual harassment cases, an employer is entitled to an affirmative defense if “(1) there is no tangible employment action (i.e., the employee is not terminated, demoted, subject to reassignment); (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (3) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”