Sexual Assault at Work

Increasing awareness of sexual harassment in the workplace has led many companies to beef up anti-harassment and assault policies. Nonetheless, harassment and sexual assault at work still occur. For victims of these crimes, a civil lawsuit is one avenue to explore in holding accountable the perpetrator, the employer and negligent third parties.

The Fort Lauderdale sexual assault attorneys at The Ansara Law Firm recognize these cases can be challenging because employers are generally protected by workers’ compensation laws that allow for a single, “exclusive remedy.” However, courts across the country have held that some tort claims for sexual harassment and sexual assault can be successful against the exclusivity defense when they occur outside the ambit of workers’ compensation. Typically, plaintiffs in these cases must show:

• Intangible/ emotional damages;
• Intentional (as opposed to accidental) quality of sexual harassment;
• Personal (rather than work-related) origin of sexual harassment.

The main legal theories that come into play in these cases are: Negligent hiring, negligent retention and respondeat superior (vicarious liability for the negligent/ wrongful actions of an employee acting in the course and scope of employment).

Our sexual assault attorneys know that in some cases, workers who have been sexually assaulted or harassed may be able to collect both workers’ compensation and third-party liability damages, depending on the circumstances.

The U.S. Supreme Court in 1998 issued two landmark decisions outlining circumstances under which employers could be liable for sexual harassment by supervisors. One of those cases, Faragher v. City of Boca Raton, was a Florida case considered on appeal from the U.S. Court of Appeals for the 11^th Circuit, while the other, Burlington Industries, Inc. v. Ellerth, was an appeal from the U.S. Court of Appeals for the 7^th Circuit.

In Faragher, a city-employed lifeguard quit and later sued the city and her supervisors alleging sexual harassment via touching and comments. She alleged discrimination pursuant to the Civil Rights Act of 1964. The district court held employer liable, finding employers’ actions were serious enough to change employment conditions and create an abusive work environment. Appellate court reversed, finding the supervisors hadn’t acted in the course and scope of employment in their harassing conduct and the city didn’t have knowledge of the abuse so couldn’t have been expected to prevent it. The U.S. Supreme Court, however, found employers could be vicariously liable for discrimination caused by a supervisor. Here, the city didn’t ensure its sexual harassment policy was distributed to employees and city leaders made no effort to track supervisors’ conduct, meaning there was evidence the city failed to use reasonable care to prevent sexual harassment.

In Ellerth, plaintiff resigned a retail job after little more than year after allegedly suffering quid pro quo sexual harassment by her supervisor. Plaintiff reportedly didn’t suffer any tangible retaliation (she was promoted once) and she also didn’t report the supervisor’s actions, despite having knowledge about the company’s anti-sexual harassment policy. However, she alleged the company forced her constructive discharge once she did speak up. The question was whether an employee who refuses sexual harassment advances by a supervisor but suffers no adverse job-related consequences can recover damages against an employer without showing employer was responsible for supervisor’s conduct. The answer: Yes. Employers can defend themselves by showing they acted quickly to prevent/ correct any harassing behavior and the plaintiff employer failed to utilize an employer’s protection, but that defense isn’t available when alleged harassment ends in some type of adverse employment reaction.

Workers’ compensation may be available in cases where someone is sexually assaulted at work. It’s not always the preferred method of compensation because it only allows for compensation for medical bills and a portion of lost wages, with no damages for pain and suffering, emotional distress, loss of consortium and more.

Claimants who may not suffer severe physical injuries may nonetheless obtain workers’ compensation on the grounds of psychological injury (i.e., post-traumatic stress disorder). Many courts have held that even those whose work requires them to interact with potentially dangerous patients/ prisoners/ populace as part of their job are not required to consider sexual assault as a normal occurrence.

In one case weighed by the Virginia Supreme Court, a woman successfully evaded the “exclusive remedy” provision of workers’ compensation following a violent sexual assault by a co-worker after it was revealed he was a registered sexual offender on whom the employer did not conduct a background check prior to hiring. In that case, plaintiff alleged she reported sexual harassment to supervisors and was rescheduled to work on an opposite shift. She also regularly had other co-workers walk her to her car. But one night she exited the building alone and he attacked her. The employer argued her civil lawsuit (for claims of assault and battery, negligent hiring, negligent retention and punitive damages) should be dismissed because her injuries arose in and out of the course of employment, and thus her only remedy was workers’ compensation. However, the state high court ruled the assault was of a “purely personal nature” and thus unrelated to her employment, meaning she could pursue a third-party liability claim.

Workers’ compensation is not necessarily the best or only remedy available to plaintiffs, but it may be worth exploring following a workplace sexual assault or sexual harassment.

Contact The Ansara Law Firm for more information about pursuing a civil claim for damages after sexual assault, abuse or molestation. Call us at (954) 761-3641 for a free case review.