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Raped on the job: Who Is Liable?

Written by Ankin Law Office

In Illinois, the law holds employers liable for employee injuries that are caused by negligent hiring, supervision, or retention of their employees.

Liability for Workplace Acts of Violence

According to the World Health Organization (WHO), workplace violence is defined as any incident that involves a physical attack, verbal abuse, sexual and racial harassment, bullying behaviors, and threats of harm to workers. If a worker suffers physical and/or emotional injury due to workplace violence, an employer may be held liable for all related damages.

At the federal level, workplace safety issues fall under the US Department of Labor – Occupational Safety and Health Administration (OSHA). Although there are no specific OSHA standards that address workplace violence, OSHA does enforce mandatory regulations stating that employers have a general duty to keep their workplaces safe from recognized hazards and provide a safe environment for their employees. Currently, OSHA can only regulate workplace violence under a “general duty clause,” but employers are urged to establish a zero-tolerance policy toward workplace violence.

At the state level, some states, including Illinois, have adopted laws that address workplace violence. In 2014, Illinois passed the Workplace Violence Prevention Act which states that an employer with 5 or more employees may seek an order of protection to prohibit further workplace violence or threats of violence by a person if: (1) An employee has suffered unlawful violence or a credible threat of violence from that person; and (2) The unlawful violence occurred at the employee’s place of work, or the threat of violence can reasonably be carried out at the employee’s place of work.  Illinois has also established laws that grant job protection and leave to employees who are victims of domestic violence at work or at home, sexual assault, and other violence.

An Illinois workers’ compensation attorney commonly sees 4 types of workplace violence:

  1. The perpetrator has no known association with the worker or workplace
  2. The perpetrator is a customer or a medical patient
  3. The perpetrator is a co-worker or former employee
  4. The perpetrator has a personal relationship with a worker

Studies on workplace violence show that healthcare workers experience a high rate of these types of incidents in hospitals settings and private medical facilities. Other workers at high risk of workplace violence include workers in offices; customer service jobs; retail stores; hotels; restaurants; bars, and nightclubs; and physical fitness facilities.

Workplace violence and sexual harassment can take many forms including rape; threats of sexual violence; unwanted groping or touching; telling lewd sexual jokes; offers of a promotion in exchange for sex; and sexual misconduct as a condition for employment or a higher salary. If these acts are perpetrated by a co-worker, the employer can be held liable for injuries caused by negligent hiring, supervision, or retention of the worker who caused the injuries.

A workers’ compensation attorney can succeed on a claim for negligent hiring, supervision, or retention against an employer if it can be established that the perpetrator’s actions were reasonably foreseeable by the employer. It’s not necessary that the employer must have foreseen the precise nature of the workplace violence or injury. Under the law, it is sufficient if, at the time of the perpetrator’s actions, harm to the victim could have been reasonably foreseen by the employer.

Claims for Psychological Injury

Psychological injuries are defined by some type of mental dysfunction or impairment caused by a physical injury, an act of violence, or a traumatic event. Psychological injury usually causes significant mental impairment that impacts an individual’s ability to perform daily tasks. Under these conditions, an injury victim may be able to file a tort action or lawsuit in civil court with a personal injury lawyer for physical injuries, as well as pain and suffering.

To file a claim for psychological injury, the injured party’s condition must be diagnosed by a licensed neurologist or psychiatrist. Psychological injuries often include the following:

  • Post-traumatic stress disorder (PTSD)
  • Severe anxiety disorders
  • Severe depression and sleep disorders
  • Cognitive dysfunctions
  • Chronic pain
  • Abnormal fears and phobias

When psychological injury is caused by a violent act or physical assault such as rape, victims often suffer from PTSD, a mental condition that alters a person’s thinking and increases their risk of suicide.

Although some cases of psychological injury involve elements of criminal behavior, most cases are handled as personal injury lawsuits in civil court. For a successful outcome, the court will require proof of a medical examination, accurate diagnosis, and prognosis, and documented medical records showing treatments, prescriptions, and therapy session notes. If the injury victim has a pre-existing mental condition, the court will need proof that the victim’s condition was exacerbated by the act of workplace violence. When filing a personal injury lawsuit in Illinois, the lawsuit must be filed within two years of the date of injury.