Is Workers Compensation the Exclusive Remedy in Workplace Sexual Harassment Cases?

Employees who believe they have been victims of sexual harassment on the job or that they work in a hostile or harmful environment have a right to take action by filing a workers’ compensation claim. As such, employers have the responsibility of maintaining a safe, civil work environment with a zero-tolerance policy when it comes to sexual harassment.

Sexual harassment includes work situations in which an employee feels physically, psychologically, or emotionally hurt by sexual provocation. This can even include a “harmless” joke that is perceived as offensive and hurtful. In more serious instances, sexual harassment could involve unwanted advances, verbally abusive language, degrading emails, or physical assault. In today’s socially charged environment, sexual harassment may also include misgendering someone by using the wrong pronoun or saying things deemed hurtful or interpreted as bullying or otherwise discriminatory by certain segments of the population.

Type of Damages

At the very least, victims of sexual assault or other types of harassment in the workplace or while performing duties for work, can usually receive repayment for any medical expenses incurred because of harassment. These payments would include economic damages such as:

• Doctor’s visits
• Therapy sessions
• Lost wages

Beyond Exclusive Remedy

In many states (such as Alabama, Arkansas, Connecticut, Florida, Kansas, Kentucky, Oklahoma, South Dakota, Washington, West Virginia, and Wyoming), workers' compensation is usually considered the exclusive remedy for sexual harassment claims.

However, in other states additional remedies may also be available. For example, under Title VII of the 1964 Civil Rights Act, several types of remedies are available including back pay, front pay, compensatory damages, punitive damages, and injunctive relief. Other remedies may include conciliation or mediation. Title VII’s prohibition against sexual discrimination includes both sexual harassment and pregnancy discrimination.

A recent case in Iowa (McCoy v. Thomas L. Cardella & Associates) illustrates this: a call center employee claimed negligence against her employer for failing to protect her from sexual-related assault and battery by her supervisor. Her employer moved to dismiss her suit on the grounds that the Iowa Workers’ Compensation Act makes workers’ compensation the exclusive remedy.

Nonetheless, a jury awarded the woman $400,000 for emotional distress. The employer appealed the ruling to the Iowa Supreme Court, which reversed, saying the lower court erred in its decision.
“When an employee is injured by the tortious acts of another employee at work [the supervisor], the workers' compensation exclusivity rule precludes a common law tort action against the employer for the resulting injuries, even when the co-employee’s conduct is intentional,” said the state’s highest court.

“Bringing tort actions involving sexual harassment against an employer — such as intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, defamation, and invasion of privacy — collide with the exclusive remedy provision written into state law.”

It should be noted though that the reason the plaintiff sued for negligent supervision was because she missed the two-year deadline for making a hostile work environment claim under the Iowa Civil Rights Act (Iowa Code Ch. 2016). Presumably, she would have been granted relief under that law if she had filed her claim timely.

The bottom line is that sexual harassment claims as they pertain to workers' compensation law can be complicated and vary by jurisdiction. Please discuss any concerns you may experience as an employer in this regard with a knowledgeable attorney.

For more information or help, contact the Insurance professionals of EPIC’s CRA ProRental™ Insurance Program. Call us at: 800.234.6363 or email us at prorental@epicbrokers.com.