Filing a Sexual Assault in the Workplace Claim?

Sexual assault is a crime. When it occurs within the workplace or at a work event, it is also an extreme form of sexual harassment.

Sexual harassment in the workplace is a form of employment discrimination that violates federal, State, and local law in New York.  Employers are required to take steps to prevent sexual harassment and, if sexual harassment is reported, to take immediate action to address the situation. Moreover, an employee who reports sexual harassment is legally protected against retaliation from her, his or their employer.

What Constitutes Sexual Assault

The term sexual assault refers to sexual contact or behavior that occurs without the consent of the victim. 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 §130.55, PL §130.60, PL §130.65)

Know Your Rights

You are legally entitled to work in a non-hostile work environment that is free of sexual harassment including assault.

A hostile work environment is one where 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.

According to the EEOC, an environment can become hostile under federal law when:

• There is unwelcome conduct, or harassment, based on race, sex, pregnancy, religion, national origin, age, disability, or genetics.
• The harassment continues and is long-lasting.
• The conduct is severe enough that the environment becomes intimidating, offensive, or abusive.

When is an Employer Liable for Sexual Assault

An employer can be held civilly liable for sexual assault at work under certain circumstances. For example, the employer may be liable for employees being sexually assaulted by non-supervisors when the employer knew or should have known about the potential for assault and failed to take prompt and appropriate corrective action.  Additionally, employers may be liable for the misconduct of supervisory employees.

What to do if you’ve been Sexually Assaulted in the Workplace

There are a number of steps that you may wish to take if you are the victim of sexual assault at work. These include:

• Seek medical attention. If you have been sexually assaulted, it is important to get whatever medical care you need.  Medical professionals can treat sexually transmitted diseases, lacerations, internal bleeding, and other physical traumas. In addition, healthcare professionals can provide you with a rape kit. A rape kit is a sexual assault forensic exam used to collect valuable evidence such as DNA and blood samples. Medical professionals can also help you with the psychological and emotional trauma that often is associated with sexual assault.
• Seek mental help. To combat depression, anxiety and PTSD, and other mental health crises brought on by sexual assault, survivors of sexual assault should seek guidance from a mental health provider. A psychologist, psychiatrist or counselor can help you better process the trauma.
• Document everything. Note the date, time, and place of the assault; what happened, and whether there were any witnesses to the behavior.  Keep copies or take screenshots of any relevant emails, texts, photos, or social posts.
• Tell a trusted friend, relative, or coworker about the assault soon after it occurs and make a note of your conversation.
• Report the conduct to the police or District Attorney.
• Report the conduct to Human Resources and document your meeting with Human Resources.
• Contact an attorney with experience dealing with these issues.

Inform A Supervisor

Many employees who have experienced a sexual assault in the workplace are concerned about filing a formal sexual harassment complaint or reporting the assault to their employers.  They may not wish to discuss the assault with their employer, they may not trust their company to take appropriate action, or perhaps they fear reprisals from the assailant or coworkers.  While these concerns are understandable, one should nevertheless report workplace assault to one’s HR department. This is because you may be unable to hold the company legally responsible for the harassment if you don't follow its reporting procedures.

It is also important to note that it is a violation of the New York City, State, and Federal law for an employer to take retaliatory action against an employee in a sexual harassment case because the employee opposes or speak out against sexual harassment in the workplace.

Contact an Experienced Attorney

If you have been sexually assaulted in the workplace or at a work event, in addition to pursuing justice in the criminal courts, you may have recourse to civil remedies that can pay you for your injuries and costs associated with recovering from them (including the cost of follow up mental health care).  The rules on when you can sue your employer are complex and you should consult with an attorney familiar with this area of the law.

The attorneys at the law offices of Peters Brovner LLP focus on holding City, State, and private institutions accountable for actions that result in significant harm and personal injury, including failure to protect individuals from sexual misconduct.  If you or someone you know has been sexually assaulted at work and you need legal advice, please reach out to the lawyers at Peters Brovner LLP for a free consultation.