Saturday, December 13, 2014

Sexual Assault in the Workplace in Virginia: Is there a workers compensation remedy?

The test for a Workers's Compensation Injury in Virginia has two components. It must occur "during the course" of the employment. And it must "arise out of" the employment. Thus, a sexual assault during work would definitely meet the first prong of the test since it occurred at work. The more difficult question is whether the assault meets the second prong of the test. Did the assault "arise out of" of the work environment?

If an employee operated the midnight shift at a 7-11, the employee could readily argue such employment exposed the employee to more risks of sexual assault than the American public is normally exposed to.

Likewise a courier who had to make payroll deposits could reasonably argue this employment created a greater risk of being assaulted.

On the other hand what if the sexual assault was by a fellow employee in the work place? Sometimes the victim does not want to be covered by the Workers' Compensation Act. If the injury is horrific, the victim might rather file a personal injury claim. In a workers' compensation claim, the remedy is limited to compensation for lost wages and medical expenses. In a personal injury claim, the victim can try to recover for pain and suffering, loss of quality of life, etc.

If the sexual assault by the fellow employee takes place in the work place but there is no other link to the work place environment, then the victim will not have a workers' compensation claim. If the victim thinks she can recover more in a personal injury case, she may not want workers' compensation coverage. Conversely, the employer might desire workers' compensation coverage since the victim's damages are more limited.

Virginia Code Section 65.2-301 does provide an employee can obtain a presumption the sexual assault arose out of the work place if the assault is reported to the police and the victim proves it came about due to the conditions of the work place.

In one recent case, the City of Richmond tried to escape personal injury liability and prove the sexual assault arose from the workplace by showing the attacker looked at pornagraphic materials at work. The court denied the City's claim. In another case, the employer tried to escape personal injury liability by showing the employer knew the assailant had prior criminal convictions when the assailant was hired. The court denied the employer's claim. In the case of Butler v. Southern States, 620 S.E.2d 768 (November 4, 2005) the Virginia Supreme Court refused to bar a personal injury claim for an employee who was sexually assaulted by a fellow employee while they were making a delivery for the employer. The Court allowed a personal injury lawsuit for negligent hiring to go for award against the employer.

In summary, the victim of a sexual assault in the work place may have a workers' compensation claim but should consult an attorney regarding whether a personal injury claim is a better choice. Which remedy is best sometimes has to be determined on a case by case basis.

For more information: contact Jerry Lutkenhaus at (804) 358-4766 or call toll-free at (800) 256-8862 or visit our website at

Virginia Workers' Compensation Lawyer.