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SEXUAL HARASSMENT AND SEXUAL ASSAULT INJURY IN THE WORKPLACE: PATHS TO RECOVERY IN AND OUTSIDE OF WORKERS' COMPENSATION

Schiff, Matthew B ; Smith, Elizabeth Connellan ; Joseph, Marla A

Tort trial & insurance practice law journal, 2023-01, Vol.58 (1), p.99-114

Chicago: American Bar Association

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  • Título:
    SEXUAL HARASSMENT AND SEXUAL ASSAULT INJURY IN THE WORKPLACE: PATHS TO RECOVERY IN AND OUTSIDE OF WORKERS' COMPENSATION
  • Autor: Schiff, Matthew B ; Smith, Elizabeth Connellan ; Joseph, Marla A
  • Assuntos: Employees ; Employment ; Exceptions (Law) ; Intentional torts ; Laws, regulations and rules ; Negligence ; Recoveries (Law) ; Remedies ; Right of action ; Sex crimes ; Sexual harassment ; Work-related injuries ; Workers' compensation
  • É parte de: Tort trial & insurance practice law journal, 2023-01, Vol.58 (1), p.99-114
  • Descrição: Hawaii specifically excludes "sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto" from workers' compensation exclusivity.5 This extends to negligent and intentional emotional distress claims as well.6 Hawaii also permits double recovery under both its Workers' Compensation Law and civil actions because the legislature explicitly states that "persons seeking statutory relief under [the] Hawaii Workers' Compensation Law should not be precluded from maintaining a cause of action arising out of the same facts as the workers' compensation claim in a court of law. "12 Courts use this analysis for sexual harassment and sexual assault claims when brought as intentional torts.13 * Ohio: An employer may be held liable for certain intentional torts if the employee proves that the employer "committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur. "18 * Pennsylvania: Pennsylvania's Workers' Compensation Act excludes injuries inflicted by third parties for personal reasons unrelated to the injured workers' employment under the "personal animus" exception.19 The statutory definition of "injury arising in the course of his employment" does not include intentional injuries by a third person, which are personal in nature and not tied to the employee's employment.20 The employer must raise the personal animus exception as an affirmative defense to the workers' compensation claim.21 If the personal animus exception applies, then "the employer is not immune from tort liability for the injury"; however, the plaintiff has the burden in the common law tort action of proving that the personal animus exception applies.22 * South Dakota: An employee has a private right of action if an employer commits a sexually motivated intentional tort that results in injury to the employee.23 However, South Dakota invokes the "alter ego rule," which states that the harasser must be "so dominant in the corporation that he could be deemed the alter ego of the corporation. "25 Texas courts give exclusivity for sexual harassment and sexual assault claims to the Texas Commission on Human Rights Act and not the Texas Workers' Compensation Act.26 Many other states have language that courts have commonly interpreted to apply an exception to exclusivity for intentional torts, which covers sexual harassment and sexual assault claims: * California: Exclusivity does not apply "[w]here the employee's injury or death is proximately caused by a willful physical assault by the employer.
  • Editor: Chicago: American Bar Association
  • Idioma: Inglês
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  • Realização: ABCD-USP USP   Logos de Redes Sociais: Freepik

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