Texas Supreme Court hears argument on expanding defense to labor code claims

The Texas Supreme Court recently heard oral arguments on expanding a defense under the Texas Labor Code to claims of unlawful discrimination.

Current law

Here’s the deal: An employee files a claim against their employer for, let’s say, a sexually hostile work environment under the Texas Labor Code, which tracks the language of Title VII of the Civil Rights Act of 1964. The employee also files claims against the employer under the common law for negligently hiring and retaining the supervisor who allegedly committed the harassment.

The common-law claims can’t be asserted, according to an earlier case from the Texas Supreme Court:

The [Texas Labor Code] confers both the right to be free from sexual harassment and the remedy to combat it. Where the [essence of an employee’s] case is [Texas Labor Code-covered] harassment, the [code] forecloses common-law theories predicated on the same underlying sexual harassment facts. The root [here] of the negligence claim is that [the company] kept around a known harasser, but this claim does not arise from separate, non-harassment conduct; it is premised on the same conduct that the [Texas Labor Code] deems unlawful.

So the common-law claims get dismissed because the Texas Labor Code already provides a remedy for the conduct.

Extending the law?