Employers are generally liable for a hostile workplace, and for the conduct of their employees. If an employee sexually assaults another employee, or if a supervisor fails to address accusations of harassment, assault, or hostile work environment, the victim can file a claim to hold the employer liable.
Employers will usually assert that the sexual assault was beyond the scope of the employee’s duties and that the employer shouldn’t be held responsible. There are many reasons why this defense should not be available to the employer. Employers have a duty to anticipate that workers of both sexes may suffer a sexual assault by another employee and by clients or customers of the employee. This duty requires that employers take proactive and responsive steps to help avoid sexual assaults.
Employers should be held accountable if a woman or man is raped, sexually assaulted, or there is an attempt to rape or sexually assault a worker if:
- The employer was aware of complaints about a specific worker, supervisor, client, customer, or vendor and failed to investigate the complaint.
- The employer created a hostile workplace that encouraged or allowed sexual misbehavior of any kind including: allowing violence; permitting intolerable language, comments, emails, and social media posts; and failing to have hiring policies, promotional policies, and other workplace benefits which are based on merit, not sexual favors.
- The employer participated in the sexual assault.
- The employer failed to have a written policy regarding sexual assault in the workplace.
- Other actions occur that give the impression, in any way, that women and men were not to be respected in the workplace.
In such cases, a victim may claim damages for injuries, lost wages, and pain and suffering, including physical, mental, and emotional trauma.
Protective actions an employer should take to protect employees from sexual assault
There are many steps employers can and should take to prevent sexual assaults in the workplace. These steps include:
- Running state and federal criminal background checks on all job applicants, especially for jobs which work with children, the elderly, and other vulnerable populations.
- Providing a written workplace policy that defines and outlines company policies regarding reports of assault or harassment, as well as how accusations will be handled.
- Conducting routine sexual harassment, sexual assault, and sexual harassment training programs, including reviews for mandate reporters.
- Clarifying when the police will be contacted if there is any complaint of sexual assault.
- Maintaining the condition and lighting of stairwells, parking lots, parking garages, or other areas which may be deemed unsafe.