Sexual Harassment: Issues of Compensability and Exclusivity
| Jurisdiction | Colorado,United States |
| Citation | Vol. 24 No. 4 Pg. 825 |
| Pages | 825 |
| Publication year | 1995 |
1995, April, Pg. 825. Sexual Harassment: Issues of Compensability and Exclusivity
In the past few years, there have been many cases brought against employers and co-employees for alleged sexual harassment. The purpose of this article is to explore whether these claims should lie in workers' compensation or in tort.
Workers' compensation was designed as an alternative to tort for work-related injuries. The Workers' Compensation Act ("Act")(fn1) is based on an exchange of rights, generally known as the "quid pro quo," under which injured workers received benefits regardless of fault and, in return, lose the right to pursue tort claims against their employers and fellow employees.
The exclusivity of the workers' compensation remedy for work-related injuries has been part of that system since its inception in 1915. Although there are many appellate cases on exclusivity, the courts have not answered the fundamental question of whether sexual harassment claims should be considered as work-related for purposes of the Act. In each case, the parties' legal positions on whether the claim should lie in tort or in workers' compensation depend on which forum is more advantageous, considering the issues of fault and damages.
The Act provides that insured employers are not liable for any "causes of action . . . for and on account of" any "death of or personal injury to" an employee.(fn2) This exclusivity also extends to actions brought against co-employees. The Act permits injured workers to bring actions in tort only against "another not in the same employ."(fn3)
Exclusivity is quite broad. In Colorado, exclusivity even applies to intentional torts.(fn4) Torts such as wrongful discharge, outrageous conduct, invasion of privacy, tortious interference with an employment relationship, assault and battery and false imprisonment may be barred.(fn5) Exclusivity may even bar claims pleaded as breach of contract, breach of implied contract or promissory estoppel.(fn6)
These claims are prohibited even if the Act does not fully or even partially provide a remedy. Some early cases from federal courts suggest that the exclusivity rule does not apply if the harm alleged was not compensated under the Act; a recent article makes this same suggestion.(fn7) However, it is unsupported by current case law.
The Tenth Circuit ruled in 1993 that a claim for "medical monitoring" arising from exposure to radioactive substances at Rocky Flats was barred by exclusivity even though the Act did not provide a remedy.(fn8) The plaintiffs argued that the claim was not one for personal injury. However, the court said the statute refers to "all causes of action" [emphasis in original], so that if the injury is within the coverage formula, an action for damages is not compensated. The court noted that ". . . the Act's exclusivity provisions necessarily include some claims for which compensation will not be awarded."
There are relatively few cases asserting exceptions to exclusivity.(fn9) Most exclusivity cases, whether they arise in tort or in workers' compensation, focus on whether the injury is covered by the Act, which provides benefits only for injuries "arising out of and in the course of employment."(fn10)
Many of the early workers' compensation statutes used some variation of the phrase "arising out of and in the course of the employment."(fn11) The definition includes two separate requirements. "In the course of refers to the time, place and circumstances under which the injury occurred. "Arising out of" refers to the causal connection between the work conditions and the injury.(fn12) In the cases dealing with the "in the course of" employment requirement, the courts have ruled that an injury was sustained in the course of employment even if the injury did not occur on the employer's premises, during working hours or during the performance of work duties.(fn13)
Recent cases...
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