Sexual harassment is not a new occurrence. With the introduction of the “Me-Too” movement, a new spotlight is shining on sexual harassment, bringing to light its prevalence in various industries.
Work-related harassment cases are costing employers billions of dollars in missed workdays, sickness absenteeism – much of it in workers’ compensation. Is the mistreatment of employees, including sexual harassment, covered under workers’ compensation?
When does sexual harassment, or harassment of any kind at work, become a workers’ compensation case?
Workers’ Compensation and Work-Related Harassment
Post-traumatic stress disorders (PTSD) could arise from harassment through battery or verbal abuse. If such harassment occurred at work, it may fall under the umbrella of workers’ compensation.
If a worker was sexually assaulted at work and the injury is accepted as compensable, the question of whether PTSD is caused by the sexual assault is a medical question. That question needs to be addressed by an IME, EMA, or authorized doctor. There is evidence in medical studies that PTSD can be caused by sexual assault.
It would be more difficult to prove that PTSD is a work-related condition for sexual harassment that is non-physical. Workers may be subject to sexual harassment such as verbal comments, non-verbal gestures, disparate treatment, or other kinds of inappropriate behavior that do not involve physical touch. It would be difficult, depending on the state, to establish these occurrences as accidents.
Although verbal sexual harassment can be a serious problem and cause workers a great deal of emotional pain, the conduct would likely have to be rather severe in order to cause PTSD.
The standard in intentional infliction of emotional distress is severe and outrageous conduct; conduct that is beyond the bounds of normal human decency. A case such as this would likely be put under a repetitive trauma theory unless there was one traumatic event such as someone exposing their sexual organs to a coworker. Again, non-physical contact PTSD claims would have to meet the Daubert standard which would likely be harder to do if the conduct is not based on a physical act. A settlement of a sexual assault-based PTSD claim should include a general release to cover any potential employment-based lawsuits that the injured worker could bring in addition to the workers’ comp claim.
The selection of workers’ compensation for sexual assault injuries can be significant in terms of choosing a remedy. By putting a physical or mental injury that happened by way of sexual assault, the Claimant could be giving up significant right to sue their employer in tort, including claims such as negligence, negligent hiring, negligent supervision, or negligent retention. However, those filing workers’ comp claims may have a separate employment action that is not waived. PTSD claims have been on the rise and many states are enacting presumptions for PTSD in first responders.
As with any workers’ compensation injury, the condition must have arisen through the course and scope of employment to be compensable.
The other issue with sexual assault covered under workers’ compensation is that it usually only covers things that arise from “accidents.” An accident is typically defined as an unexpected, unintentional event. A physical sexual assault or sexual battery is an intentional act. The states are split as to whether sexual assault can be considered an accident for the purpose of workers’ compensation.
If you live in New York and you believe that you have been sexually harassed, you should report the conduct to your employer, temporary agency or placement agency. If your employer is your harasser, or you do not trust how your employer will react, you may contact the New York State Division of Human Rights. The Division of Human Rights can take complaints and investigate.
You can also, simultaneously or subsequently, file a complaint with the New York State Division of Human Rights (a complaint must be filed with the Division of Human Rights within one year of the alleged discriminatory act). For information on how to file a complaint, visit www.dhr.ny.gov/complaint or call 1-888-392-3644.
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