Preventive steps help employers restrict exposure in new era
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With so much uncertainty in how a state or court will handle or view a workers compensation claim stemming from sexual harassment or assault, the best protection is prevention.
Employees who are not happy about the way their comp claims are being handled may make additional claims such as filing complaints with state or federal agencies alleging discrimination or harassment, to use as “leverage to further their cause,” said Sandy Little, director of enterprise risk management at Bar-S Foods Co. in Phoenix.
While the #MeToo movement has made companies more socially aware of the problem of sexual harassment and assault, it is important that they are proactive about making employees understand that sexually harassing behavior will not be tolerated, and that they have a documented process in place on how to handle harassment and assault claims, Ms. Little said.
“Making sure processes are followed is really key,” she said.
Up-to-date policies for investigating complaints — and ensuring that they’re followed and implemented as written — are imperative, said Courtney Britt, a partner in the Raleigh, North Carolina, office of Teague Campbell Dennis & Gorham LLP.
When civil harassment and assault cases are pursued in federal court, those courts must decide whether the alleged injury falls under a state’s workers compensation act, she noted. Accusations of mishandling claims of harassment by a supervisor or co-worker have been more likely to lead to a finding of compensability in these federal court decisions, she said.
“For some reason, the courts are attempting to address this by drawing this distinction of employer mishandling of the claims,” Ms. Britt said.
Discouraging office relationships may help prevent future harassment or assault claims if a relationship sours, said Elizabeth Connellan Smith, counsel at Verrill Dana LLP in Portland, Maine.
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Sexual harassment and assault have risen to the top of employment concerns for employers in the #MeToo era, but the question of whether such incidents constitute a compensable injury in the workers compensation context is unclear.
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