• Workplace Sexual Assault: Should You Prepare for a Workers' Compensation Claim or Civil Action?
  • March 22, 2006 | Authors: Cecil H. Creasey; S. Vernon Priddy
  • Law Firm: Sands Anderson Marks & Miller, PC - Richmond Office
  • Sexual assaults in the workplace present employers with a complicated and uncertain exposure for damages, requiring a careful case-by-case analysis of an employer's exposure for liability and damages. In such a dreadful event, will an employer face a workers' compensation claim, with limited, statutory entitlement to comparatively certain benefits, or a civil action, with limitless exposure?

    In the recent opinion in Butler v. Southern States Coop. Inc., __ Va. __, 620 S.E.2d 768 (Nov. 4, 2005), the Supreme Court of Virginia addressed this issue and held that a female employee's suit against her employer and a co-worker who assaulted her while they were making a delivery for employer is not barred by the exclusivity provision of the Workers' Compensation Act. Thus, her lawsuit for damages was allowed to proceed against her employer and co-worker.

    As part of her duties, Ms. Butler helped a co-worker make a feed delivery to a customer. While making the delivery, the co-worker made sexual remarks to Ms. Butler, grabbed her and tried to kiss her. On returning to the store, Ms. Butler remained frightened and nervous and began feeling ill. Ultimately, she reported the incident to police.

    Ms. Butler sued her employer for negligent hiring and retention and intentional infliction of emotional distress. She sued the co-worker for assault and battery and intentional infliction of emotional distress. Ms. Butler alleged in her lawsuit that her employer knew her co-worker had been convicted of felony rape and had a felony parole violation on his criminal record when it hired him.

    To support a claim of negligent hiring in Virginia, a plaintiff must allege that the employee had a known propensity of being a danger to others in the past, the employer knew or should have known through reasonable discovery about these acts, and the employer hired an unfit employee and placed him in a situation where he could create an unreasonable risk of harm to others. Interim Personnel of Central Virginia, Inc. v. Messer, 263 Va. 435, 440 (2002)

    The trial court dismissed Ms. Butler's claims, sustaining defendants' special pleas in bar under Code § 65.2-307, the section of the Workers' Compensation Act that provides that the Act is an employee's "exclusive remedy" for injuries arising out of and in the course of her employment. Ms. Butler appealed, and the Supreme Court reversed the trial court. First, the Court held, in assessing the applicability of the Workers' Compensation Act, that the assault she alleged in her lawsuit arose "in the course" of her employment. She was in the process of making an authorized feed delivery for her employer.

    The Court's discussion of the "course of" component in itself raises an interesting point. The Court explicitly held that the "course of" test under the Workers' Compensation Act is directly analogous to the "scope of" test for determining an employer's respondeat superior liability to a plaintiff for injuries suffered from the act of an employee. This potentially breaks new ground, as the Supreme Court has, in past cases, held that the two tests differ. In Sayles v. Piccadilly Cafeterias, 242 Va. 328, 331 (1991), the Court stated the test of whether an injury " '[arose] out of and in the course of the employment,' within the meaning of Code § 65.1-7, is not the same as the test for determining whether a servant acted within the scope of his employment under the doctrine of respondeat superior." Interestingly, though, the Sayles Court explained further that


    an act is deemed to be within the scope of the employment if (1) it be something fairly and naturally incident to the business, and (2) if it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill-advisedly, with a view to further the master's interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account.


    Id. at 332 (emphasis added).


    The dispute here, rather, focused on whether that assault "arose out of" Ms. Butler's employment - a different analysis from the traditional "course of" analysis. In assault cases, the "arose out of" prong has been construed to require that "there must be a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed to conclude that the injury arises out of the employment. This determination must necessarily be made on a case-by-case basis." Carr v. City of Norfolk, 15 Va. App. 266, 422 S.E.2d 417 (1992). Thus, despite what the Supreme Court stated in its Butler decision, its earlier discussion of "scope of" in Sayles appears to carry with it -- in its "something fairly and naturally incident to the business" -- significant aspects of the workers' compensation "arising out of" test.

    The Supreme Court ruled, however, that the trial court erred in holding that the employee's damages "arose out of ... her employment" because, taking her allegations as true, the co-worker's assault resulted from his asserted personal attraction and was, thus, personal to her rather than directed against her as an employee or because of her employment. The co-worker's actions did not further the employer's business and, therefore, Ms. Butler's injury could not fairly be traced to her employment as a contributing proximate cause.

    While this opinion is not particularly groundbreaking, except perhaps for the "scope of" issue, the Supreme Court chose to accept this case for decision. The Court's Butler decision highlights the burgeoning role of negligent hiring claims as a vehicle to get an injured employee's claim before a Circuit Court rather than the Workers' Compensation Commission. It also highlights the need to examine the facts as well as the allegations and theories of each claim carefully in assessing whether a workers' compensation plea will likely succeed. It also highlights need for the employer to make an informed decision about the strengths and weaknesses in the defense of a workers' compensation claim versus an action at law.