Sexual assault is traumatic under any circumstance. When it happens at work, it can upend your entire life.
Survivors lose not only their peace, sense of safety, and restful nights – they often also lose their jobs. Sometimes that’s because of retaliation. Other times, it’s because the survivor can’t bear to be in the same space where they were violated. Coping with rape trauma syndrome is a misery on its own, let alone having to slog through it while struggling financially, trying to land a new job, and perhaps forgoing work they once found meaningful.
Research published in the American Journal of Preventative Medicine reveals approximately 5.6 percent of women (about 7 million) in the U.S. have reported sexual violence by a workplace-related perpetrator at some point in their lives. Of those, about 1 million reported being raped. Another 1 million said they were sexually coerced. Some were just teenagers. Only about 2 percent reported what happened to police. Given that rape is a hugely underreported crime, we can reasonably presume the actual impact of this issue is even more staggering.
Employers aren’t expected to have crystal balls and anticipate every scenario. However, they are expected to use diligence in hiring. They are expected to provide adequate supervision and security for employees. They’re expected to ensure their facilities are reasonably safe. They should have written sexual harassment policies – provided to workers – clearly explaining what to do if they are a victim of sexual harassment or assault. They are expected to take prompt, effective action if harassment, assault, or abuse is reported. They are expected to refrain from retaliating against the victim for reporting what happened. Unfortunately, some employers fail to take the bare minimum steps needed to protect potentially vulnerable workers.
Workplace Sexual Violence is an Ongoing, Serious Problem
Among just a few of the more recent, high-profile workplace sexual assault claims:
- A franchisee operating more than a dozen McDonald’s restaurants in Minnesota recently settled a workplace sexual assault lawsuit filed by the state’s human rights commissioner on behalf of a 14-year-old girl who was raped at work seven or eight times over the course of a month by her 24-year-old boss. The supervisor was later found guilty of sexual assault and sentenced to 10 years in prison. Despite actively recruiting young employees with no experience, supervisors failed to intervene amid months of escalating sexual harassment. When a manager “heard rumors” of a relationship, he accepted the 24-year-old’s denial and never interviewed the 14-year-old or took any other corrective action. It went on until another manager walked in on yet another assault in progress. In a 2020 survey, three-quarters of female employees of this restaurant chain nationally report being sexually harassed at work – and most of those were retaliated against for reporting it.
- The trucking industry is under scrutiny as dozens of women truckers have alleged sexual assault at work. Women are the fastest-growing cohort in the industry, thanks to aggressive recruiting to help address the truck driver shortage. Many of the reported cases involve sexual harassment and sexual violence by co-drivers. Given the transitory nature of the job, jurisdictional issues can complicate criminal investigations. Sexual assault lawsuits against the trucking companies allege negligent hiring (not conducting background checks or accepting drivers with violent criminal histories), sexual harassment (failing to intervene and protect vulnerable employees when problems a reported), negligent supervision (not providing enough oversight/resources when pairing workers who spend long hours alone together), and retaliation (firing workers who report their on-the-job attacks). Trainees are often the most vulnerable, according to a report by the Center for Public Integrity.
Talk to a Lawyer With Experience Handling Civil Sexual Abuse Claims
When that organization employs the victim – or the victim and the perpetrator – they can be held legally liable in a number of ways.
Avenues to Employer Accountability for Employee Sexual Assault
There are several possible approaches to civil litigation against employers for an employee’s sexual assault.
One would be an employment lawsuit for gender discrimination in the form of unchecked sexual harassment, a violation of the worker’s civil rights. In Florida, this route requires that you first file a complaint with either the state EEOC or the Florida Commission on Human Relations. You have just one year from the date of the incident (or the most recent incident, in cases of ongoing harassment/assault) to file a claim. The agency will investigate, determine if the allegation has merit, and if so, give the employer a chance to offer remedy during mediation. If that fails, the state may file the case on your behalf. If the state can’t substantiate your claim, you’ll be given a right to sue notice, from which point you have 90 days to file your own lawsuit. An attorney can help you through this process.
Another would be a claim of direct negligence for things like negligent security, negligent hiring, and negligent supervision.
If the assault was perpetrated by a supervisor, the victim may be able to prevail by asserting the employer’s vicarious liability under the doctrine of respondeat superior, Latin for, “let the master answer.” It means employers can be held liable for the negligence and/or wrongdoing of an employee acting in the course and scope of employment. Its application in sexual assault lawsuits across the country has been spotty and controversial. However, in two 1998 landmark U.S. Supreme Court cases – Burlington Industries v. Ellerth and Faragher v. City of Boca Raton – the court held that while plaintiffs still have to prove negligence against employers in sexual harassment/assault cases involving non-supervisory employees, employers are held to a higher standard where supervisory misconduct is concerned. In other words, the plaintiff doesn’t have to establish that the employer was negligent. It’s also no longer a defense for employers to simply say they didn’t know or could not have known. Employers can be held vicariously liable for supervisor sexual harassment even if there was no resulting adverse employment action (firing, demotion, transfer, pay cut, etc.). However, they can avoid liability in that scenario with an affirmative defense. To prevail in that, they have to show they took reasonable steps to prevent sexual harassment/assault, as well as prompt remedial measures to effectively address the problem as soon as they learned of the misconduct. However, in cases where there WAS adverse employment action taken, employers can’t argue this affirmative defense. They can be held vicariously liable for the on-the-job misconduct of a supervisor – even if the employer itself was not negligent.
The legal strategy most effective in your case will come down to the unique circumstances.
If you have been a victim of sexual assault at work in South Florida, we can help.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
Sexual assault-related ER visits increase more than tenfold, Oct. 20, 2022, Michigan Medicine, University of Michigan
More Blog Entries:
Justice for Florida Sexual Assault in Health Care Settings, Dec. 15, 2022, Palm Beach Sexual Assault Lawyer Blog