Written by Barry Montgomery, Esq.
Edited by Bill Pfund, Esq.
We all know that 2017 brought with it the powerful #MeToo movement raising the awareness of sexual assault—especially in the workplace. The international movement has found support among celebrities and politicians. The hashtag “#MeToo” has been posted on social media sites millions of times since October 2017. It follows that such a movement has influenced they manner in which most jurors perceive allegations of sexual assault in the workplace. However, it remains to be seen how #MeToo era juries will hold employers civilly liable for sexual assaults committed by their employees. While traditional sexual harassment cases invariably end up in federal court, sexual assault victims may file tort cases in state court directly against the assaulter and his employer. This article will address common questions I receive from claims adjusters regarding claims of sexual assault made directly against an employer and the employer’s potential liability.
Can Sexual Assault Be Committed Within the Scope of Employment?
Yes. In Virginia, it is well that while the plaintiff has the burden of persuasion on the issue of whether the employee was acting within the scope of his employment at the time of the act complained of, simple proof of the employment relationship creates rebuttable presumption of the employer’s liability.” Gina Chin & Assocs. v. First Union Bank, 260 Va. 533, 542 (2000). The court noted that when an employer-employee relationship has been established, then the burden is on the employer to prove that the employee was not acting within the scope of his employment when he committed the act complained of, and . . . if the evidence leaves the question in doubt it becomes an issue to be determined by the jury. Id. (emphasis added).
The Court in Chin also expressly rejected an argument that an employee’s act that causes injury must be undertaken with an intent to benefit the employer in order to fall within the scope of employment. The Supreme Court in Chin recognized that when an injury is caused by an intentional or even criminal tortious act that clearly would not have been contemplated by the employer as being within the scope but which nonetheless was performed incident to the employment and even facilitated thereby then there remains an issue of fact (for trial) as to whether the employee committing the sexual assault was acting within the scope of employment. The motive of the assaulting employee is not determinative but, rather, the issue is whether the service itself, during which the assault occurred, was within the ordinary course of such business.
See Chin at 542-43. For example, in Plummer v. Center Psychiatrists, Ltd., 252, Va. 233, 238 (1996), the Virginia Supreme held that a counselor engaging in unethical sexual relationship with patient was potentially acting within scope of employment. The court emphasized that the counselor seduced and assaulted the plaintiff while he was performing his duties as a psychologist. The Court also emphasized that the counselor’s education, experience, and knowledge of the plaintiff, who was depressed and had suicidal ideations, “enabled him to overcome her will.”
What About The Workers’ Comp. Act Bar?
When the sexual assault is committed by a coworker, the assaulted employee is not necessarily confined to filing a Worker’s Compensation claim. The Court has consistently held when an assault is “personal to the employee” and not “directed against [her] as an employee or because of [her] employment” then the injury does not arise out of the employment. Richmond Newspapers v. Hazelwood, 249 Va. 369, 373, 457 S.E.2d 56, 58 (1995); When the assault is a result of the coworkers asserted personal attraction towards the victim, then the assault is personal to the victim employee and does not arise out of employment for purposes of the Workers’ Compensation Act. See Butler v. Southern States Coop., Inc., 271 Va. 459 (2005). The Virginia Workers’ Compensation Act also provides that an employee injured due to sexual assault by a coworker may elect to file an action against the co-worker in lieu of filing a workers’ compensation claim. See §65.2-301, Code of Virginia
Can Punitive Damage Be Awarded Against An Employer Due to an Employees’ Sexual Assault?
In certain narrow instances, yes. Generally speaking, an employer cannot be held liable for punitive damages for the wrongful act of his employee that the employer did not specifically authorize, ratify or condone. See Freeman v. Sproles, 204 Va. 353 (1963); Shahin Golesorkhi v. Lufthansa German Airlines, 122 F.3d 1061 (4th Cir. 1997). However, in circumstances where the “bad actor” employee has a long history of reported sexual assaults/harassment with no discipline, plaintiffs can argue that the employer condoned the acts of its employee. Likewise, if the employer ignores the claim or, worse yet, takes steps to conceal or “cover up” the allegations, plaintiff’s might also argue that the employer condoned or ratified the sexual assault and should therefore be liable for punitive damages.
What To Look For When Investigating Sexual Assault Claims
When investigating a claim involving sexual assault in the workplace, be sure to contact the employer’s human resources or personnel department to obtain their sexual harassment policy. Pursuant to federal law, most employers maintain and publish policies in their employee handbooks prohibiting sexual harassment. Some employers even provide training to their employees to prevent harassment. Evidence of such measures taken by the employer to prevent sexual harassment and sexual assault will serve to negate a claimant’s argument that the employer condoned or ratified such conduct.
If the alleged assaulting employee has a history of reported sexual harassment, be sure to collect copies of any investigation of those allegations as well as any disciplinary actions that were taken. This documentation will support the defense argument that the employer did not condone the alleged sexual misconduct of their employee but thoroughly investigated it and, if supported by evidence, took appropriate disciplinary action. With respect to the claimant’s allegations, be sure to document that the employer took the allegations seriously by promptly investigating. Also be sure to obtain a copy of any disciplinary history of the claimant to note whether his/her compliant of sexual assault coincided with any disciplinary action or negative performance review. Evidence of such discipline or negative reviews close in time to the alleged assault can also serve to prove a motive for the claimant to fabricate the claim.