Update on Nov. 4, 2017: A year after The Dallas Morning News wrote this story, this case is now headed back to the Texas Supreme Court for the second times in two years. Since that time, the high court sided with B.C.'s attorney, erasing the cap on compensation for employees who are sexually assaulted by their bosses.
The win, which we wrote about earlier this year, means women who are assaulted on the job can seek unlimited damages from the company that employs them, whether the incident was sexual or not in nature. However, the employee must prove the perpetrator of the assault was a member of management, someone senior enough to represent the company.
There are still caps on compensation for workers who are sexual harassed on the job.
B.C. is still fighting for compensation because while she won at the Supreme Court, she now has to prove the man she alleged assaulted her is a "principal" of the company for which he worked, according to her attorney.
The News will continue to follow this story as the case is hashed out in court and as Americans grapple anew with questions of workplace sexual assault in the wake of rape allegations against Hollywood producer Harvey Weinstein.
AUSTIN — One minute, she said, she was having a smoke with her boss in the employee bathroom during their overnight shift at a Steak 'n Shake in Plano. The next, he lunged.
“He grabbed the back of my head ... and was pulling it towards his face and I kept telling him ‘no,’ ” she said in sworn testimony. They struggled, she said, and he threw her against the bathroom door. He “pulled his genitals out and then grabbed my head and tried to pull towards him.
“I pushed him, and he said, ‘No, you know you want it.' "
B.C., as she is referred to in court documents, sued her attacker. She also sued the restaurant, arguing that the company was liable for the attempted sexual assault.
Steak 'n Shake’s team of lawyers, which included then-state Sen. Ken Paxton, got her case dismissed. They leaned on a previous court ruling, which employment attorneys said is unique to Texas, that has created legal hurdles for victims of sexual assault to sue their employers and has shielded businesses from costly litigation.
But the Texas Supreme Court could take steps toward removing those hurdles next week when the justices review B.C.’s lawsuit. If they side with Steak 'n Shake, the decision could have serious consequences for victims of workplace sexual violence.
“It could have a chilling effect on women trying to pursue a rightful claim when they were assaulted in the workplace,” said David Medina, a former state Supreme Court justice. “It’s bad enough when someone is harassed on the job.
“This is like rubbing salt on a wound.”
More hurdles, less money
In Texas, if you’re punched or beat up on the job, you could sue your employer and receive thousands or millions of dollars. Under state law, there is no cap on damages for aggravated assault.
But if you’re sexually assaulted while at work, businesses like Steak 'n Shake argue that you can only sue your employer under state or federal sexual harassment laws, which cap damages at $300,000.
You can’t go straight to court, either. Sexual harassment complaints have to be filed within 180 days with state officials, who decide whether to issue you a “right to sue” letter. The administrative process can be confusing and difficult for victims who have recently experienced trauma, advocates say.
Matt Kita, B.C.’s attorney, said businesses say that victims of workplace sexual assault are entitled to less money than employees who experience physical — but nonsexual — attacks.
"If a Steak 'n Shake manager had walked into the ladies room and shot my client with a pistol, there is absolutely no question that Steak 'n Shake could be sued for assault and that there would be no cap on actual or punitive damages," Kita told The Dallas Morning News. "But because he tried to rape her, she ... is limited to $300,000."
This gap between the damages available to battery victims and those who experience sexual assault hasn’t always existed. The Texas Commission on Human Rights Act was passed in 1983 to protect employees from sexual harassment. But in 2010, after Republican lawmakers worked for years to limit common law tort and damage awards, the Texas Supreme Court made a pivotal decision.
That year, the court heard a case that pitted Waffle House against a former restaurant hostess.
Read more: Waffle House case opinions
Cathie Williams filed two lawsuits against her employer, one for sexual harassment and the other for not firing the employee she said harassed her.
A jury awarded her nearly $4 million.
The Supreme Court overturned the jury’s decision and sided with Waffle House. In their ruling, the justices said Williams could sue only through the administrative sexual harassment system, which capped her damages at $300,000.
'Takes no legal rights away'
Paxton and Christopher Kurzner, the attorneys representing Steak 'n Shake, relied on the Waffle House precedent to defend their client. Other businesses have begun to do so, too, including Tex-Mex chain Chipotle in its appeal of a nearly $8 million sexual assault judgment filed last month.
Read more: Chipotle cites Waffle House precedent in appeal
Advocates for sexual assault victims say caps on damages shield businesses from accountability. If companies like Steak 'n Shake know they can be sued for millions if they foster or turn a blind eye to hostile work environments, they’ll be more discerning about policies and hiring, the advocates argue.
Business advocates say prohibiting some common law cases against companies does not deny victims the right to sue because they can still file sexual harassment lawsuits and take their attackers to court. Damage caps, they argue, protect businesses from frivolous lawsuits.
“Except for the damage cap, the [Human Rights] Act takes no legal rights away from the employee,” the Texas Restaurant Association said in a brief in support of Steak 'n Shake. “It merely requires the employee to go through the administrative phase first.”
But B.C. did not file a sexual harassment claim because the assault was a one-time event, not the culmination of months of inappropriate behavior, her attorney said. Citing Waffle House, courts in Collin and Dallas County disagreed, defined sexual harassment and sexual assault as the same thing and said Steak 'n Shake wasn't liable.
A win for B.C. at the Supreme Court wouldn't be a panacea for victims. Businesses like Chipotle would probably still cite the Waffle House precedent as a shield against certain lawsuits. Whatever it decides, the court will dictate the next steps for both businesses and victims of workplace sexual violence, including whether it's time to pressure state legislators to change the law.
Read more: Texas Restaurant Association brief supporting Steak N Shake
‘A perverse outcome’
The Waffle House precedent, central to B.C.’s case, is one link in a long chain of efforts to limit lawsuits in Texas, pitting business interests and their lobby against trial attorneys. While the disagreement is familiar, attorneys said the precedent makes Texas an oddity when it comes to victims' rights.
“It’s a decision that’s an outlier in terms of other states, and really it’s poor public policy,” said Debbie Katz, an employment law attorney based in Washington, D.C., who practices in multiple states. “That’s just a perverse outcome [and] a significant limitation of the rights of individuals.”
Read more: Texas Association Against Sexual Assault brief supporting B.C.
Medina sat on the Supreme Court when the Waffle House case was heard and was one of only two justices who disagreed with the decision.
“I just don’t understand how a company or any business, small or otherwise, could use that case as a shield when it comes to sexual assault,” said Medina, now a private attorney in Houston. “I just don’t think that was the intent of the Legislature.”
Yet, that’s what Steak 'n Shake’s attorneys are arguing — that lawmakers intended to limit victims’ legal options.
‘Untenable’
In a legal brief defending Steak 'n Shake, Kurzner and Paxton cited the Waffle House case to argue that lawmakers who wrote the state’s sexual harassment laws three decades earlier meant to apply the limit to sexual assault victims.
"It is untenable that the Legislature would craft an elaborate anti-harassment regime so easily circumvented," they wrote in December 2013, five months before Paxton won the Republican primary for attorney general. "Plaintiff cannot so easily avoid the statute's damage caps — if she wishes to obtain recovery for the conduct alleged, she must follow the path prescribed by the Legislature."
That’s false, said U.S. Rep. Lloyd Doggett, a Democrat who wrote the law in 1983, when he represented Austin as a member of the Texas Senate.
"My objective in authoring the law was to expand remedies against discrimination, not limit them. Denying civil remedies was not a part of the legislative deliberations," Doggett told The News after reviewing his notes from 1983. "Employing the Human Rights Act as an obstacle to deny an employee who has been sexually assaulted from bringing a civil lawsuit against her employer would defeat the purpose of my work, not advance it."
Kurzner and representatives from the Texas Restaurant Association declined to discuss the case. Paxton was involved only in the trial phase and has had no involvement since, a spokesman said.
In a search of business and campaign finance documents and social media posts, The News discovered no personal or professional links between Paxton and Steak 'n Shake's owners or local operators.
“Throughout his legal career, Ken Paxton has represented a wide array of clients in a variety of legal matters,” said his spokesman, Matt Welch. “In this matter, General Paxton was approached by Steak 'n Shake’s lead counsel to serve as local counsel because of his experience in and familiarity with Collin County.”
‘A second look’
On Monday, the state Supreme Court will review B.C.’s case against Steak 'n Shake. It could be months before the justices rule. If they decide to revive her case, she still must convince a lower court that Steak 'n Shake is liable for her assault.
Susan Hutchison, the attorney who defended Cathie Williams in the Waffle House case, will be watching. She said she hopes the justices’ decision to review B.C.’s lawsuit is a cue that they’re ready to revisit the precedent they set with her client.
“Maybe it’s the current climate of addressing women’s rights. A lot of these issues are coming to the forefront right now, so maybe it’s contributing to their decision in taking a second look at it,” Hutchison said. “That’s a good sign, and I’m honestly surprised and optimistic.”
Editor's note: This story has been updated to reflect that Congressman Lloyd Doggett was a member of the Texas Senate, not the Texas House, in 1983.
