Research from a 95-page 2016 Equal Employment Opportunity Commission (EEOC) report indicates that 75 percent of workplace harassment victims experienced retaliation when they reported it, which can create grounds to legally pursue an employer. The comprehensive study of workplace harassment in the United States concluded further that “anywhere from 25 percent to 85 percent of women report having experienced sexual harassment in the workplace” and that the problem is massively underreported. Harassment affects both genders and ranges from offensive comments to assault and rape. Male-dominated industries like construction, and low wage industries like hospitality had especially high rates of harassment.
Given the new and brighter spotlight this issue has garnered in recent weeks – could there be implications for workers’ comp?
Harassment as comp claim
The EEOC report defines “harassment” beyond the legal definition stating that:
Because our focus was on prevention, we did not confine ourselves to the legal definition of workplace harassment. Instead, we looked at unwelcome or offensive conduct in the workplace that: (a) is based on sex (including sexual orientation, pregnancy, and gender identity), race, color, national origin, religion, age, disability, and/or genetic information; and (b) is detrimental to an employee’s work performance, professional advancement, and/or mental health. This includes, but is not limited to, offensive jokes, slurs, epithets or name calling, undue attention, physical assaults or threats, unwelcome touching or contact, intimidation, ridicule or mockery, insults or put-downs, constant or unwelcome questions about an individual’s identity, and offensive objects or pictures.
In the workers’ comp arena, harassment claims are rarely considered compensable. Louisiana Comp Blog reached out to several local attorneys to ask why.
“It is very difficult to obtain comp arising out of sexual harassment because generally a pattern of harassment is not going to fit the statutory requirement of a ‘sudden extraordinary event’ necessary to make a mental injury claim,” said William “Trey” Mustian, attorney with Stanga & Mustian and President of Louisiana Workers’ Advocates.
Given that “sudden extraordinary event” language in the statute, claims of harassment of any kind, including sexual, are unlikely to succeed in the workers’ comp system. Mustian noted a case he lost years ago in which his client claimed she was subjected to a pattern of hostility that led to severe emotional distress.
Wayne Fontana, a defense attorney with Roedel Parsons, also said that harassment claims rarely reach workers’ comp payers. “In all my years of practice, I frankly have never seen a sexual harassment case that overlapped or merged into a workers’ compensation claim,” he said.
However, Fontana explained that there are two ways in which sexual harassment could be pursued as a workers’ compensation claim. First, if the assault resulted in physical injury. And second, if it became a “mental/mental claim” in which the harassment “qualified as sudden unexpected and extraordinary stress which led to a psychological disability.”
Although the claims remain rare now, the conversation around sexual harassment in the workplace and in society seems to have reached a boiling point, and workers’ comp could experience changes in interpretation because of it. Fontana noted, “As sexual harassment has seemingly been underreported in the past, perhaps we’ll see a future sexual harassment claim that will encompass the elements of workers’ compensation and eventually result in a workers’ compensation disability claim.”
Until then, employers should be prepared. As Bobby Truitt of The Truitt Law Firm explained, “I think the lesson to be learned from the Weinstein scandal is that employers should review their current portfolio of insurance coverages to insure that they have coverage for these types of claims.”
The national conversation and what the EEOC recommends
Workplace harassment takes many forms, and legal ground for such claims can be slippery and devolve into he said/she said arguments. The United States in recent weeks has been grappling specifically with sexual harassment claims amid the news that over 60 women have come forward to accuse prominent Hollywood producer Harvey Weinstein of the Weinstein Company of everything from untoward comments to rape.
Here locally, Besh Restaurant Group, (BRG) led until this week by famous New Orleans Chef John Besh, has faced an expose from NOLA.com | The Times-Picayune in which 25 women describe coercive sexual harassment emanating from Besh and his associates, as well as hostile workplace environments at BRG restaurants.
The EEOC provides resources on its website for employers and employees regarding sexual harassment and other kinds of harassment. Generally, whistleblowers have 180 days to file a charge against an employer who retaliates.
In the 2016 report, the Commission recommends further action including an “It’s On Us” campaign to educate the public about what harassment is and bystander training. It also recommends conducting “climate surveys” to assess how employees view the risk of harassment and deliver prompt discipline to employees found to have engaged in inappropriate behavior. An anti-harassment company policy is the first step.
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