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Sexual harassment as the cause of injury
Workers' compensation can provide reimbursement for medical expenses and lost wages for victims of harassment, as well as vocational training, but it is not set up to punish an employer or another employee for wrongdoings, or to influence changes in behavior.
Workers' compensation is not the best instrument to change the behavior of employers or their agents because it is a no-fault system. The point of the workers' compensation is to provide quick and easy redress for workplace injuries while avoiding litigation. Therefore, neither party need show that the other did anything wrong. Since an employer who engages in harassment, or who tacitly authorizes the behavior by ignoring it, would not be required to admit wrongdoing they are less likely to make an effort to make changes in the work environment.
Although workers' compensation is not a good way to deal with sexual harassment cases it often comes up because it is a potential defense for the employer. When workers' compensation is available for a workplace injury it is the exclusive remedy for the employee against their employer. This means that the employee does not have the right to sue their employer. Therefore, when facing a sexual harassment lawsuit, many employers argue that the employee's injury is covered by workers' compensation and that they do not have the right to sue.
When an employer says that workers' compensation is the exclusive remedy for a claim based on harassment there are a few major arguments that a court may consider. In general, workers compensation will be the exclusive remedy for an employee when there has been 1) an injury, 2) that is work-related, and 3) that was not intentional. An employer may argue that all three criteria are met, while and the employee will argue that this type of case does not fit these criteria.
Every state has its own statutes and judicial decisions governing how a case like this will come out. Different courts have come down in different ways on all of these issues. Some courts say that sexual harassment is an injury, while other states say that is it not. Some states say that harassment cannot be considered an accident, but others say that it can. Likewise, some courts think that harassment is something that arises out of employment - still others think that it is separate from the employment relationship. Basically, it is something that varies on a state-by-state basis.
An argument that the employee is likely to make in this type of case is that the harassing activity constitutes an intentional act of the employer. Most states have an exception to their workers compensation laws, either statutory or created by the courts, that says injuries resulting from the intentional act of an employer can give rise to a lawsuit outside of workers' compensation. This exception would also apply if the employer authorized someone else to engage in activity that was harmful to the employee.
Clearly, the impact of workers' compensation on a particular sexual harassment claim is hard to predict. It depends on state law, judicial decisions, and the circumstances of each case. Most individuals who embark on a sexual harassment suit find that an experienced attorney can guide them through many issues and questions that will arise.
What is Sexual Harassment?
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