Sexual assault in the workplace is a crime that can happen almost anywhere.
It happens in restaurants. It happens in offices and at retail stores. It happens to housekeeping staff in hotel rooms. It happens on business trips and in parking lots, advocates for assault victims and legal experts say.
“It happens so much more than it ever gets reported, and that coincides with any form of sexually inappropriate behavior that happens, whether it’s in the workplace or elsewhere,” said Sandra Henriquez, CEO of Sacramento, California-based ValorUS, formerly the California Coalition Against Sexual Assault, which has expanded across the United States.
Oftentimes, victims attempt to sue employers. There’s no shortage of cases, especially in recent years, as the #MeToo movement — inspired in part by widespread and systemic sexual assault in the film industry — led to a flood of litigation, experts say.
And the lawsuits are increasing, said Marshall Gilinsky, a Boston-based shareholder for Anderson Kill P.C.
“We’ve seen a lot of these types of issues develop over the past five years, and it’s obvious that we as a society had a #MeToo reckoning,” he said. “People have been more comfortable coming forward with allegations.”
What’s also changing is the awareness of the definition of sexual assault: It’s not always a violent rape involving penetration. It can be any unwanted touch, according to Ms. Henriquez.
And physical touching can result in criminal charges. After a television news reporter doing a live shot in 2020 of the Savannah Bridge Run in Savannah, Georgia, had her buttocks slapped by a runner, the runner, Thomas Callaway, was sentenced to a year’s probation and fined $1,000 after pleading guilty to sexual battery.
Patrick Perotti, a Cleveland-based partner at Dworken & Bernstein Co., which represents employers, summed it up: “You are not allowed to touch someone else without their permission.”
Employers grappling with lawsuits filed by workers who claim they were sexually assaulted in the workplace typically turn to workers compensation’s exclusive remedy in defense of allegations that could, if a jury finds the employer to be at fault, translate into millions of dollars in damages, legal experts say.
A 2010 case that went to trial in Tennessee resulted in a $3 million jury verdict against P.F. Chang’s China Bistro Inc. The case involved a restaurant manager who was violently raped at gunpoint by a cook who had clocked out for the evening but jammed the back door of the restaurant where the alarm system had been repeatedly documented to be malfunctioning.
The plaintiff’s attorney, Gary Smith, of Memphis, Tennessee-based Gary K. Smith Law PLLC, said, “We knew from day one that exclusive remedy would be their first defense.”
A lower court and the Tennessee Court of Appeals in 2017, in Jane Doe et al. v. P.F. Chang’s China Bistro Inc., agreed that exclusive remedy did not apply because the company had numerous security failures, Mr. Smith said.
“We also thought that the risk of rape by a co-employee in a store that was closed after hours and not open to the public, was not a risk of the employment … and we prevailed on that,” he said.
A spokeswoman for P.F. Chang’s said the company does not comment on litigation.
The Iowa Supreme Court in June came to a different conclusion in a case involving a call center worker who sued Cedar Rapids, Iowa-based Thomas L. Cardella & Associates, which operates call centers in several states, for negligence for allegedly failing to protect her from sexually-related assault and battery by two supervisors at its Ottumwa, Iowa location.
In case No. 22-0918, the woman said she complained about the behavior of both men and quit when Cardella failed to offer a solution. The state’s highest court ruled that exclusive remedy barred the suit, writing that “(w)hen an employee is injured by the tortious acts of another employee at work, the workers compensation exclusivity rule precludes a common law tort action against the employer for the resulting injuries, even when the co-employee’s conduct is intentional.”
The Iowa Supreme Court, which overturned a $400,000 verdict from a lower court, ruled that the case involved “recovery of mental health injuries caused by Cardella’s failure to protect her from injuries caused by assault and battery in the workplace: in other words, physical injuries” under state law.
Cardella did not return requests for comment.
Legal outcomes often depend on the facts surrounding the assault: Was the perpetrator a coworker, an acquaintance or a stranger? Were there warning signs or security lapses? Where did the incident happen? Was a physical injury documented?
Jurisdiction is also an important factor in the success or failure of a case, legal experts say.
“There are a lot of questions that have to be answered,” said Jeff Adelson, a partner with the Newport Beach, California-based law firm Adelson McLean P.C., which represents employers. Cases in California often hinge on who the perpetrator was: a coworker, where the risk is not inherent, or a member of the public, in a public-facing business where violence is always a workplace risk.
“There’s a flood of people coming in retail stores all the time,” Mr. Adelson said.
Most states allow for exclusive remedy defense in sexual assault cases, and the cases often see years of litigation. Complicating the issue, many assaults are determined to have resulted in mental injuries only and not all states allow for mental injuries in workers compensation.
That question arose in Truman Arnold Companies v. Circuit Court, which was heard by the Arkansas Supreme Court in 2017. The case was filed by a woman at a car wash who alleged her supervisor raped her. A circuit court assessed that the injury was mental, and Arkansas doesn’t accept mental-only workers comp claims. The state’s highest court sent the case back to the comp court for further evaluations on the type of injury, among other issues.
“One fact could change the outcome of whether or not it’s a work comp case,” said Zachary Rubinich, Philadelphia-based partner at Rawle & Henderson LLP, which represents employers.
William Anderson, Atlanta-based partner at Hamilton, Westby, Antonowich & Anderson LLC, said workplace sexual assault is “extremely fact sensitive and case specific” but added that change may be on the horizon.
“This is a very different conversation that people would have had 25 years ago,” he said. “I think the case law — many of the cases that we rely upon are 25 years old, 20 years old, 10 years old — is going to become more fluid.”
In addition, lawmakers in two states have attempted to remove the exclusive remedy defense through legislation.
For the seventh consecutive year, New York lawmakers were presented with a bill that would override exclusive remedy in cases involving a “sexual offense,” as described in state law as a sexual act “committed without consent,” including “forcible touching.” S.B. 5698, introduced in March, stated that injuries from a sexual offense would be compensable under workers comp and would allow “such employee to pursue any other remedies available at law or in equity.”
S.B. 5698 also would have clarified “that workers compensation should be exclusive remedy except when the employee suffers personal injury as a result of a sexual offense committed by a co-worker.” Legislative documents filed in support of the bill said that “(w)hile workers compensation should be available to those injured by a sexual offense, committed in the workplace, it should not be the exclusive remedy, since there are sometimes egregious instances of employer malfeasance and negligence in the workplace which tragically lead to the workplace sexual assault or injury.” In addition, “an already victimized employee should not be forced to endure an employer’s claim that a violent and repeated sexual assault was a natural condition of her employment.”
H.B. 3977, introduced in Texas in March, stated that an employee who is a victim of a sexual assault may sue their employer if the injuries “arose from the employer’s negligence.”
Both bills failed to progress, according to a spokesman for the American Property Casualty Insurance Association. Sponsors in both states did not return repeated requests for comment.
Andrea Giampetro-Meyer, a professor in law & social responsibility at Loyola University Maryland in Baltimore, said she was glad to see states attempting to tackle the issue — which she researched for an article for the University of California-Los Angeles Women’s Law Journal in 2000: “Raped at Work: Just Another Slip, Twist, and Fall Case?”
For the analysis, Ms. Giampetro-Meyer and two co-authors examined cases in which courts determined that a woman’s only remedy for a workplace rape was workers compensation. The authors argued that “rape is an extraordinary injury and therefore should not be treated like purely physical injuries more commonly covered under workers compensation.”
“We were just ahead of our time apparently,” she said. “The workers compensation system never intended to cover the kinds of injuries victims experience after a rape.”