Can a Corporation be Held Liable for Sexual Assault in the Workplace?

An employer may, under certain circumstances, be liable for sexual assault in the workplace. In addition to being a crime, sexual assault in the workplace can also be a form of employment discrimination that violates federal, State and local law in New York. It may also implicate an obligation on employers to provide a safe workplace.

As to claims for employment discrimination, employers are required to take steps to prevent sexual harassment and assault and, if sexual harassment or assault is reported, to take immediate action to address the situation. Moreover, an employee who reports sexual harassment or assault is legally protected against retaliation from her, his or their employer.

What Kinds of Behavior are Considered Sexual Abuse or Harassment?

Defining Sexual Assault

In New York State, criminal sexual assault is covered by Sections 130 of the Penal Code, which includes a variety of crimes covering various sexual acts, such as:

Rape (PL§130.25, §130.30, §130.35)
Criminal Sexual Acts (Forced Anal or Oral Sex) (PL §130.40, PL §130.45, PL §130.50)
Facilitating a Sexual Offense with a Controlled Substance (PL §130.90).
Sexual Abuse (Unwanted sexual contact) PL §55, PL §130.60, PL §130.65)

Defining Sexual Harassment

Generally, sexual harassment happens in one of two ways: Quid Pro Quo or Hostile Work Environment.

“Quid pro quo” literally means “this for that” in Latin. Quid pro quo sexual harassment occurs when someone in a position of authority (i.e. a manager or supervisor) seeks sexual favors from a worker in return for some type of benefit — such as a raise, better hours, promotion, etc. — or to avoid some type of detriment, like a pay cut, demotion, poor performance review, firing etc.

A hostile work environment is one where, for example, a supervisor, manager or coworker by words or actions negatively impacts another employee’s ability to work. Any employee can be responsible for creating such a hostile work environment.

Sexual Harassment can include, among other things:

Unwelcome sexual advances
Sexually offensive/inappropriate remarks or jokes
Unwanted touching, groping, pinching or patting
Coerced sex acts
Displaying pornographic images, sexual graffiti, or offensive illustrations
Comments about a person’s gender or sexual preferences
Sexual gestures (e.g., pantomiming sex acts)., notes, teasing, jokes
Pressure for dates and/or pressure for sex
Sexually demeaning comments
Comments generally demeaning to one particular gender
Sexual Harassment does not necessarily require a criminal act (although some conduct could constitute a crime under the applicable state penal law).

Employer Liability for Sexual Assault

An employer can be liable for sexual assault in several ways. To begin with, if the employer knew or should have known that one employee had a propensity for sexual assault and didn’t take steps to protect that employee’s co-workers, the employer could be liable for negligent hiring and supervision.

Additionally, as noted above, sexual assault can be a form of employment discrimination. Again, if the employer knew or should have known of the employee’s propensity for sexual assault and didn’t take steps to prevent it, the employer could be liable for employment discrimination as well.

Why should an Employer Conduct an Investigation?

Internal investigations are procedures that review certain aspects of the conduct of an organization or employees of that organization. The purpose of the review is to determine whether external laws or regulations or internal policies have been violated and to allow discipline of wrongdoers and/or changes to internal compliance policies. The internal investigation can also allow an organization to respond to inquiries from law enforcement and regulators, improve internal procedures and respond to public inquiries and manage reputational risk.

What are the benefits of an internal investigation?

Allows the company to learn the full scope of the problem
Allows the company to remedy internal problems and help prevent future problems
May allow the company to avoid a lengthy governmental investigation
May allow the company to take advantage of potential benefits of cooperation with government investigations
May mitigate penalties that result from civil and criminal investigations
May insulate the company, board of directors, or management against allegations of complicity or of willful blindness to red flags
Allows the company to manage reputational risk
Helps the company prepare for civil & criminal litigation
Promotes a culture of transparency and compliance

How Should an Employer Conduct an Investigation?

Companies should consider hiring an experienced investigative firm who can help with the following steps:

Background and computer assisted research on the entity involved;
Collection and review of written documents;
Interviews of employees and other witnesses;
Forensic review of computer email and accounting systems as needed;
Creation of a compliance plan going forward;
Responding to government regulators and prosecutors if necessary;
Responding to, or initiating, civil litigation if necessary.

Effective Sexual Harassment Policies

An effective sexual harassment policy should include the following:

A statement defining sexual harassment, stating that it will not be tolerated and describing the consequences of violation of the policy.
A detailed explanation of how employees can report harassment.
If possible, designation of at least two individuals who can receive complaints.
A non-retaliation policy including a statement that employees will not be punished for reporting harassment or participating in a harassment investigation or lawsuit.
A confidentiality policy promising a complainant the greatest degree of confidentiality possible.
A mandatory reporting policy for managers and HR staff requiring them to report harassment when they become aware of it.
An investigation policy establishing a timely and thorough investigation of all harassment complaints.
A training policy providing for ongoing training on sexual harassment.
Signed documentation that employees have been provided with all of these policies and training and have received, read and understand the policies.

Contact an Experienced Sexual Assault Attorney

If you have been the victim of sexual assault or harassment at work and want advice on your legal options, or you are an employer who needs an investigation into sexual assault or harassment at your workplace, please contact an experienced attorney.