4-1-1 on Comp: Sexual Harassment and PTSD in Workers’ Compensation

Bruce Burk

Sarasota, FL (WorkersCompensation.com) – Sexual harassment has been in the news lately with multiple media moguls being targeted and some taken down, while the #metoo movement is attempting to combat sexual assault. However, if sexual assault occurs at work, it could be covered under workers’ compensation. What is more, any mental injuries that occur as a result of the sexual assault could also be covered under comp.

The selection of workers’ compensation for sexual assault injuries can be significant in terms of choosing a remedy. By putting a physical or mental injury that happened by way of sexual assault, the Claimant could be giving up significant right to sue their employer in tort, including claims such as negligence, negligent hiring, negligent supervision, or negligent retention. However, those filing workers’ comp claims may have a separate employment action that is not waived. PTSD claims have been on the rise and many states are enacting presumptions for PTSD in first responders.

As with any workers’ comp injury, the condition must have arose through the course and scope of employment to be compensable. PTSD could arise in sexual harassment through a battery or by verbal abuse. If it is through a physical attack, the law usually requires that the attack is related to a dispute that was related to work. For example, an argument over salary negotiations that escalates into violence. The mere fact that two people who get into an altercation that work together may not be enough to invoke the right to workers’ comp benefits. In other words, sexual assault that is merely personal in nature may not be covered. The defense of going and coming would also apply to this type of claim.

The other issue with sexual assault covered under workers’ compensation is that it usually only covers things which arise from “accidents.” An accident is typically defined as an unexpected, unintentional event. A physical sexual assault or sexual battery is an intentional act. The states are split as to whether sexual assault can be considered an accident for the purpose of workers’ compensation.

If a worker was sexually assaulted at work and the injury is accepted as compensable, the question of whether PTSD is caused by the sexual assault is a medical question. That question needs to be addressed by an IME, EMA, or authorized doctor. There is evidence in medical studies that PTSD can be caused by sexual assault. The opinion from a psychologist or psychiatrist will need to be based on the Daubert standard supported by medical studies and will depend on the specific facts of the sexual assault.

It would be more difficult to prove that PTSD is a work related condition for sexual harassment that is non-physical. Workers may be subject to sexual harassment such as verbal comments, non-verbal gestures, disparate treatment, or other kinds of inappropriate behavior that do not involve physical touch. It would be difficult, depending on the state, to establish these occurrences as accidents. Although verbal sexual harassment can be a serious problem and cause workers a great deal of emotional pain, the conduct would likely have to be rather severe in order to cause PTSD.

The standard in intentional infliction of emotional distress is severe and outrageous conduct; conduct that is beyond the bounds of normal human decency. A case such as this would likely be put under a repetitive trauma theory unless there was one traumatic event such as someone exposing their sexual organs to a coworker. Again, non-physical contact PTSD claims would have to meet the Daubert standard which would likely be harder to do if the conduct is not based on a physical act. A settlement of a sexual assault based PTSD claim should include a general release to cover any potential employment based lawsuits that the injured worker could bring in addition to the workers’ comp claim.