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SEXUAL ASSAULT IN THE WORKPLACE
Joju Thomas, Esquire and Richard Gash, Esquire
(Continued from page 1)
The alleged incident occurred in the bathroom of the establishment. The claimant did not report anything until nine days after the alleged incident. The claimant stopped working for the insured after she reported the incident. The claimant did not press charges. The claimant filed a claim with the workers' compensation board alleging depression as a result of the alleged sexual assault in the bathroom while she was working for Hess Gas Stations.
In New York, an assault is compensable 'so long as there is any nexus, however slender, between the motivation for the assault and the employment.' The test to determine the compensability of injuries sustained in an assault is whether the assault originated in work-related differences or purely from personal animosity between the combatants. This is a question of fact for the Board and, if an award is made, it must be sustained so long as there is any nexus, however slender, between the motivation for the assault and the employment.
The mode of analysis for a sexual assault is similar to that of a regular assault. In Mintikis v. Metropolitan Opera Association, the court held that a sexual assault becomes work related when either of two conditions are met: 1) the motivation or precipitant for the assault must be work-related or 2) whether the nature of the employment created a dangerous or hazardous condition.
In Matter of Deveraux Foundation, the Board reversed a Law Judge's determination that established a claim for depression based on an alleged sexual assault in the work place. The Board Panel determined, based upon the testimony indicating a consensual meeting, as well as the fact that there were no criminal charges filed as a result of the alleged incident, that there was no work related motivation for the alleged conduct.
Applying the law narrowly to the scenario described above, there is a possibility that the carrier can put forth a successful defense of this claim. But, New York City Workers' Compensation Law Judges are notorious for their claimant friendly decisions and expansive interpretations of applicable law. This is but one obstacle, albeit huge, that a carrier faces when defending a sexual assault claim.
Additionally, the claimant is entitled to the presumptions promulgated under § 21 of the Workers' Compensation Law, which must be rebutted with sufficient evidence to successfully deny a claim. In general, under Section 21, a claim is presumed: 1) to have occurred in the course of the claimant's employment, 2) to satisfy the notice requirements; 3) causally related to the claimant's employment.
These presumptions, in concert with several factors apparently at work in the scenario described above, could provide the claimant with a sufficient basis to maintain a successful claim. Initially, we highlight that the alleged incident occurred on the work premises. The claimant could argue that the employer failed to make sure that, as a woman, she was protected from unwanted sexual advances. What might be friendly flirting to observers could very easily be construed as unwanted and threatening advances by a given claimant, depending on his or her general make-up and sensitivities. Therefore, any testimony that the claimant and the truck driver were "friendly" is essentially irrelevant, if the claimant testifies that she was not on friendly terms with this man.
Moreover, the claimant could argue that as she was given the job of cleaning the bathroom in such an establishment, the employer should have made sure that any customers knew that no one was allowed in while she was performing her duties. Essentially, the claimant can make a strong and viable argument that the nature of this employment created a dangerous or hazardous condition ripe for the alleged incident to occur.
Therefore, absent sufficient evidence indicating: 1) that the assault occurred outside the course of the claimant's employment; 2) a consensual meeting; 3) a relationship outside of work, or 4) evidence to rebut the presumptions of WCL Section 21, this claim in particular will be difficult and costly for a carrier to successfully defend.
But, given the liability that could be incurred by a carrier in these types of claims, litigation should never be taken off the table. Should your company receive notice of a sexual assault claim filed in New York State and would like to discuss your defense and chances of success, please contact Joju J. Thomas of our New York Office.
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