Remedies for Workplace Sexual Violence, 1116 COBJ, Vol. 45 No. 11 Pg. 47

AuthorSarah J. Parady, J.

45 Colo.Law. 47

Remedies for Workplace Sexual Violence

Vol. 45, No. 11 [Page 47]

The Colorado Lawyer

November, 2016

Sarah J. Parady, J.

Specialty Bar Series-CWBA

Employers who fail to prevent known risks of sexual violence in the workplace or who retaliate against employees for reporting such acts are subject to liability. This article discusses employee remedies for injuries resulting from sexual violence in the workplace and retaliation for reporting what occurred.

Sexual violence is exceedingly common in the United States. Statistics from the Centers for Disease Control and Prevention show that 18.3% of women and 1.4% of men experience rape during their lives.[1] Sexual violence is not limited to women: about 5% of both men and women reported some form of unwanted sexual contact in the past year.2 LGBTQ people and people with disabilities are particularly likely to be subjected to sexual violence.3

Workplaces are hardly immune. The National Sexual Violence Resource Center reports that 8% of rapes occur at work.[4] About one-third of rape victims miss 10 or more days of work as a result.5 The Occupational Safety and Health Administration (O SHA) reports that when women are killed at work, the assailant is most commonly a relative or domestic partner,6 and as of 2009, “[w]orkplace homicides remained the number one cause of workplace death for women.”7

This article addresses employer liability8 for two separate categories of harm that might result from an act of sexual violence: physical injury or emotional distress arising from the act itself, and adverse consequences in the workplace in retaliation for reporting what occurred.

As used in this article, “sexual violence” means a broad range of acts or threatened acts of violence, including both nonconsensual sexual acts and acts of violence motivated by the victim’s sex or gender, as well as threats of violence that are explicitly sexual or motivated by a victim’s sex or gender.

Remedies for Damages from a Violent Act

The U.S. Supreme Court invalidated the Gender-Motivated Violence Act on Commerce Clause grounds in 2000.9 Since then, there has been no civil remedial scheme applicable to the workplace and addressed specifically to sexual violence. However, when an employee experiences an act of sexual violence at work, the employer may be liable for violating federal or state anti-discrimination laws or may be liable in tort if workers’ compensation exclusivity does not bar such a claim.

Discrimination Law: Hostile Work Environment

Creation of a hostile work environment based on sex is illegal under both federal and state law.10 The Colorado Anti-Discrimination Act (CADA) expressly outlaws creation of a hostile work environment based on sexual orientation or transgender status,11 and Title VII of the Civil Rights Act of 1964 (Title VII) is increasingly interpreted to prohibit harassment of individuals based on their sexual orientation or failure to conform with prevailing gender norms.12 Same-sex sexual harassment is illegal if the victim can show that the harassment was “because of sex”—for example, if the harasser was motivated by sexual desire or if a female harasser uses “such sex-specific and derogatory terms” that it is clear she is hostile to other women in the workplace.13

A single incident of “physically threatening conduct” can be severe enough to constitute a hostile work environment,14 especially if the assault has a “sexual element.”15 In general, harassment of any form must be “sufficiently severe or pervasive to alter the conditions of the [victim’s] employment.”16 However, an employer is not automatically liable for the harm caused to the employee by a hostile work environment, including an assault.

Under Title VII, there are four grounds for employer liability for a hostile work environment. These grounds are largely based on general tort and agency principles, but have given rise to a large body of case law specific to the Title VII context.17 (Under CADA, the issue of when an employer is liable is less well-defined, but regulations issued by the Colorado Civil Rights Division (CCRD) track the Title VII case law.18 ) The four grounds for employer liability are discussed below.

Negligence.

If the harasser is not the employee’s supervisor but is a coworker or a third party,19 an employer is liable only if the hostile work environment was caused by its negligence.20 The Tenth Circuit requires the employee to show that the employer had “actual or constructive notice of the harassment and negligently failed to remedy or prevent it.”21 This may be difficult in cases where there was no ongoing harassment leading up to an assault, or where the harasser did not specifically threaten an assault.22

Vicarious liability for tangible employment action.

The employer is vicariously liable, even in the absence of actual or constructive knowledge, if (1) the hostile work environment is created by the victim’s supervisor and (2) the hostile work environment escalates to include a “tangible employment action” such as a demotion or termination.23 Accordingly, where a supervisor assaults an employee and then follows the assault with an attack on the victim’s job, the employer may be liable. This may be true even where the victim resigns rather than being terminated, if the resignation was a “reasonable response” to an adverse action short of termination (known as a “constructive discharge”).24 Where a tangible employment action leads to wage loss, damages for lost pay are available in addition to damages for injuries and emotional distress arising from the assault.

Vicarious liability without tangible employment action.

The employer is also vicariously liable in the absence of a tangible employment action if the harasser is a supervisor and the employer cannot show both that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities.”25 This means that a company that has no policies against sexual harassment and workplace violence may be liable if a s upervisor threatens or assaults an employee.

Employer as proxy. An employer is liable for acts of individuals who are so highly ranked that they act as proxies for the company, such as “presidents, owners, proprietors, partners, corporate officers, and supervisors with a high position in the management hierarchy.”[26] Because companies typically have policies against workplace violence and sexual harassment, and not all victims may come forward immediately, this is an important form of liability in cases involving sexual violence.

An employee who prevails on a hostile work environment claim is entitled to compensatory damages for emotional distress and punitive damages, within certain caps that depend on the size of the employer.27 Attorney fees and injunctive relief are also available, and if the hostile work environment rose to the level of a constructive discharge, an employee can be compensated for her lost pay through the date of trial, and can also receive either front pay beyond the date of trial or reinstatement to her position.28

Although the procedural requirements for each of the claims described herein are outside the scope of this article, advocates are cautioned that (1) under Title VII and CADA administrative remedies must be exhausted before claims may be filed in court, and (2) the deadlines to file a claim with the Equal Employment Opportunity Commission (EEOC) or the CCRD are 300 days and six months, respectively, from the relevant discriminatory (or retaliatory) act.29

Because EEOC and CCRD charges are not easily accessible to the public, the administrative process may be attractive to employees who are concerned with the public spectacle of immediately filing a court complaint for tort or other claims. However, the exhaustion requirement also adds considerable time to the already lengthy process of pursuing claims.

Tort Law: Workers’ Compensation Exclusivity

Before considering possible tort claims against an employer, the employee must first determine whether the Colorado workers’ compensation statute precludes tort liability.30

The workers’ compensation system is the exclusive source of remedies for a work-related injury, and an employee may not file tort claims in court arising from a covered injury.31 This includes mental health injuries.32 To be compensable through the workers’ compensation system (and subject to exclusivity), an injury must “arise out of” one’s employment and occur “in the course of” that employment.33 Either of these requirements may be at issue in determining whether an intentional act of violence inflicted upon an employee falls within the workers’ compensation scheme.

Intentional acts of third parties “arise out of” the victim’s employment if they “have an inherent connection with the employment.”34 Such acts do not arise out of the victim’s employment, and may give rise to tort claims against the employer in court, if they are “inherently private.”[35] “Neutral” acts, which are neither inherently related to employment nor inherently private, arise from employment and fall within the workers’ compensation system.36

In practice, this means that workplace assaults that arise as part of a work-related conflict, such as “arguments over work performance, work equipment, delivery of a paycheck, or termination from work,” are subject to workers’ compensation exclusivity,37 as are random accidents for which “the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time.”38 But violent acts that are motivated by...

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