TX: Supreme Court Clarifies Relationship Between Common Law Torts and Statutory Liability

In a case on a question certified by the Fifth Circuit, the Supreme Court of Texas clarified the relationship between common law torts and statutory liability.  The Texas Labor Code, in Chapter 21, authorizes suits against employers for certain types of discrimination, harassment, and retaliation.  In a previous case, the court held that Chapter 21 was the exclusive remedy when the gravamen of the plaintiff’s case is Chapter-21 covered discrimination.  The Fifth Circuit certified the following question:         

Does [Chapter 21] preempt a plaintiff-employee’s common-law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as discrimination and/or retaliation claims asserted against the plaintiff’s employer?

The court answered the certified question in the negative:  “The availability of a Chapter 21 claim against an employer forecloses other entwined claims from being asserted against the same defendant, but it does not immunize other defendants, who are not subject to liability under Chapter 21, from liability under recognized common law causes of action for their own tortious conduct. Because no ‘clear repugnance’ exists between common law defamation and fraud claims against an employee and Chapter 21 claims against an employer, even when they are ‘based on the same course of conduct,’ we hold that Chapter 21 does not abrogate such claims.  We answer the Fifth Circuit’s certified question ‘no.’”

The case involves a law professor.  The opinion is here:  Download Texas Supreme Court Decision in Butler v. Collins (1)  Thanks to Warigia Bowman for the pointer.