A recent report by the Equal Employment Opportunity Commission indicated there are more than 12,000 reports of sexual harassment to that agency annually. The actual number of incidents is almost certainly far higher. The official figures also don’t necessarily include the number of sexual assaults at work. Every two minutes in the U.S., a woman is sexually assaulted, and nearly 40 percent of those instances involve someone they know – including potentially co-workers, customers, etc.
In these instances, is workers’ compensation the exclusive remedy for employees who are sexually assaulted on-the-job or at a job site? The answer is: It depends.
Workers compensation laws, as enacted in all 50 states, provide payments to workers who are injured during the course and/or scope of employment. With few exceptions, these laws provide exclusive remedy for workplace injuries, and thus bar workers from filing civil lawsuits against their employers.
However, our Winston-Salem work injury lawyers know is it sometimes preferable to the employee to bring a civil action. While it’s a more adversarial, drawn-out process, it tends to garner a higher degree of compensation. That’s why companies often argue the exclusivity rule of workers’ compensation in cases like these.
Whether a worker who suffers a sexual assault at work should seek workers’ compensation or civil litigation – or both – is a question that should be weighed carefully with an attorney. Even if a court rules the worker is bound by the exclusivity provision to seek only workers’ compensation against an employer, there could still be civil remedy against the property owner, perpetrator, etc.
Most courts that have weighed the question of whether a sexual assault is compensable under workers’ compensation have dealt with the “arising out of the employment factor.” Most have ruled that when an employee’s job requires that individual to be present in the workplace when the harassing and/or assault occurs, the claim arises out of employment and workers’ compensation is the exclusive remedy. Other courts have held that where the harassment/attack was personal to the employee/victim, the incident did not arise out of employment, and therefore, a civil action may be brought.
For example, a federal court in Virginia last year ruled in Hartman v. Mfrs. Distrub. Marketing Serv., Inc. that a worker who suffered a violent sexual assault by a co-worker in the parking lot of their shared workplace as she left for the evening could sue her employer for negligent hiring, negligent retention, assault and battery and punitive damages. The court ruled the attack was not related to her employment, but was “purely personal in nature,” and therefore her claim was exempted under state workers’ compensation act.
However, just because a civil claim can be filed doesn’t necessarily mean it will be successful. One must still meet the basic criteria of a personal injury case, which is to prove:
- A duty of care owed;
- A breach of duty;
- A proximately-caused injury.
In the recent case of Fox v. Sara Lee Corp., the North Carolina Court of Appeals affirmed a trial court order dismissing plaintiff’s claim of negligence by her employer. She was reportedly unable to prove her Winston-Salem employer ratified the wrongful actions of its employee.
According to court records in the case, plaintiff was cornered and sexually assaulted in a cubicle by a co-worker one afternoon. As a result, she suffered severe mental health problems that ultimately led to the loss of her job.
She initially filed a lawsuit against her employer alleging assault, battery, false imprisonment and intentional infliction of emotional distress. However, that filing was more than four years after the fact, and defendant firm moved to dismiss on statute of limitation grounds.
Trial court dismissed, but that decision was reversed on grounds plaintiff, as result of presumed mental distress, became an incompetent adult for purposes of tolling the statue of limitations. The case was remanded, but again dismissed on grounds plaintiff was unable to prove the company supported its worker’s wrongful actions. In fact, company responded immediately after the report, suspending the perpetrator and also firing him.
Although company also sought to dismiss the claim on grounds workers’ compensation was exclusive remedy, the court did not rule on that aspect.
Still, worker was able to secure a $732,000 civil judgment against her attacker.
Because these cases are difficult and time sensitive, it’s important to trust such claims only to a law firm with extensive litigation experience and proven success.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Fox v. Sara Lee Corp., Oct. 21, 2014, North Carolina Court of Appeals
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Can Injured Workers Recover Damages for Pain and Suffering? Oct. 22, 2014, Winston-Salem Workers’ Compensation Lawyer Blog