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Workplace sexual assault & workers' comp

Workers’ Comp and Workplace Sexual Assault

Under Ohio law, workers injured on the job must resort to workers’ compensation insurance to pay for medical expenses and lost wages. In most cases, workers’ comp is the only way to recover money from an employer for a workplace injury. Workers are usually not allowed to sue their employer for damages beyond those that are covered by workers’ comp.

Being sexually assaulted is one of the worst things that can happen to a person. If a sexual assault happens at work, is workers’ comp the only way to recover damages from an employer? The short answer is “it depends on the perpetrator.” In this blog post, we explain why.

Workers’ Comp Covers Employment Accidents But Not Intentional Torts

By law, workers’ compensation insurance in Ohio covers “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.”  The Ohio Supreme Court long ago held that an “intentional tort” by an employer – which includes any sort of assault – does not occur “in the course of,” nor does it “arise out of,” a person’s employment.

In essence, injuries resulting from intentionally harmful conduct by an employer fall outside of the workers’ compensation law. Employers are therefore not immune from being sued by employees for causing employees intentional harm (although Ohio law does make it potentially difficult to prove an intentional tort case against an employer in some instances).

But, because lawsuits take time, in reality, the injured employee may still first collect workers’ comp benefits for an injury and then bring a claim against the employer alleging the harm was intentional. If that claim succeeds, the workers’ comp insurer will have a statutory right of subrogation to recover from the employee any benefits it already paid.

How Workers’ Comp Addresses Sexual Assault

There’s no doubt a sexual assault is an intentional tort. If the perpetrator is a boss or colleague, a sexual assault falls outside of the scope of a person’s employment. It may not ultimately be covered by workers’ comp, but can well be the subject of a lawsuit by the victim against her employer alleging an intentional tort. (Such a case also frequently also involves claims of harassment and other forms of workplace discrimination, which are also actionable.)

In contrast, if the perpetrator is not arguably connected to or controlled by the employer, the Ohio workers’ compensation law treats sexual assault as a compensable injury like any other, with one significant amplification. In cases of sexual assault, the most profound and lasting injuries victims endure may be psychological, rather than physical.

Emotional Trauma of Workplace Sexual Assault

For years, the workers’ comp law did not cover treatment for purely emotional injuries in most cases. In 2006, however, the Ohio legislature amended the definition of “injury” in the workers’ comp law expressly to include “psychiatric conditions [that arise] from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate” as “injuries” covered by workers’ comp.

According to this 2012 Court of Appeals decision, the legislature made this change after an Ohio court decision barred a woman from receiving benefits for the emotional injuries she sustained when a stranger forced her at gunpoint to leave her workplace and engage in sexual acts with him. Today, workers’ comp covers sexual assault an injury even if emotional trauma constitutes the only injury for which care and treatment are needed.

Legal Help In Cases of Workplace Sexual Assault

Employees who have suffered the trauma of a sexual assault in the workplace, and their employers, need, skilled, compassionate, legal counsel to guide them through the process of resolving workers’ compensation and other legal claims.

Contact Dworken & Bernstein today to schedule a free consultation with a member of our team.

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

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