Litigating Claims For Sexual Harassment In The Workplace

Personal Injury

With recent accusations and settlements in the entertainment industry, the issue of sexual assault and sexual harassment in the workplace has become a multi-million dollar legal issue to business owners and insurance companies.

Here’s What You Need To Know About Litigating A Sexual Harassment Claim In Florida

Collectibility is the key to many claims. Tort claims of any type are typically not pursued unless there is a way to collect. Regardless of how bad the conduct is, if there is no insurance or assets to seize, then it does not make financial sense to drag a defendant to court only to obtain a judgment that likely will never be collected. Therefore, assuming that a worker has been the victim of sexual assault or harassment on the job, then collectilility is where to start.

Insurance Coverage For Sexual Misconduct

Virtually all liability policies (both business and personal) have an exclusion for intentional torts. Sexual assault or harassment is generally considered intentional for purposes of tort law and is therefore excluded under most policies.

However, with regard to a business insurance policy (typically a commercial general liability policy or “CGL”), an employee can sue the employer for negligent hiring or retention of another employee and the CGL will provide coverage for the claim. An in depth discussion about how insurance coverage works can be found here as these issues can get very complex as abuse can be spread out over the course of many years and multiple insurance carriers or policies.

Negligent hiring and retention claims require a showing that the employer did something wrong. It is not enough that sexual assault or harassment occur on the job. Instead, the employer must either know about prior improper conduct from the employer and choose to keep them employed, or, the employer should have been able to discover prior improper conduct from a background check prior to hiring the employee.

The typical successful case for sexual harassment involves insurance to collect from rather than relying on assets from the defendant who is personally guilty of assault or harassment. As an attorney who regularly sues people, I can tell you that collecting a person’s assets is often difficult or impossible, even when it comes to business owners. The stories in the news involving extremely wealthy individuals or celebrities paying out 6 or 7 figure settlements are usually exceptional cases. In most cases, even a person who owns a business will have the shield of bankruptcy and asset protection strategies to prevent someone from reaching their assets in the event of a judgment.

How To Prove Your Case

Proving that an employer was negligent in hiring or retaining an employee is often a lot more difficult than proving that an assault or harassment has taken place.  Your case will come down to your credibility against the credibility of the accused.

After improper sexual conduct has occurred on the job, the improper behavior has to be reported. This is often a difficult step for a victim to take because they fear that the business will not take the incident (or conduct occurring over a long time) seriously or may disbelieve the victim. The last thing that anyone who has been the victim of harassment wants to do is make things worse for themselves, however, the employer must know about the conduct if there is to be legal responsibility for it.

Things get even more difficult for the victim when the offender is not just a superior but is instead an owner of the business. If you have become the victim of sexual assault or sexual harassment from a business owner, then your only legal remedy is to seek legal help. Doing so almost always results in the loss of the job for victim as well.

In addition to reporting misconduct, you will need evidence to support your claim. Keeping a journal with specific dates, names, and descriptions will help if you have made one. However, most victims will not have made a journal. You should save emails, text messages, or anything else that may show harassment. Perpetrators of sexual harassment will often deny that their behavior is harassment and will deny that anything was meant by anything that they said or did.

As the plaintiff in the case, you will have to prove what was actually said (or done) rather than just how you received it. At that point, it is up to the jury to decide whether it was harassment or not, however, a plaintiff’s attorney would be remiss to file a case where the abuse was anything but flagrant.

Plan Of Action To Survive Until The End Of The Case

Once you have reported sexual misconduct, you may be out of a job for quite some time until a case can be filed and successfully completed. You will need a plan of action to survive until then. You may need to rely on a supportive spouse or family members for a long time until you can regain employment. You should also think about whether your spouse is going to be supportive and whether your relationship is going to survive.

Statute Of Limitations

You generally have 4 years to sue an employer for negligence (see 95.11(3), Fla. Stat. or 95.11(7) for intentional torts based on abuse) but possibly longer to sue the perpretrator if the victim was a minor when the misconduct occurred. In those cases, the time period is within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.

For victims of sexual battery under the age of 16 (See section 95.11(9), Fla. Stat.), there is no statute of limitations at all for cases arising after 2010. I mention this because there are victims of sexual abuse who are working children, typically in entertainment related jobs where such employment is allowed.

Get Legal Help If You Have Been The Victim Of Sexual Misconduct

Contact an attorney who is accepting cases for sexual assault or sexual harassment in the workplace. Sexual harassment cases in Florida are typically handled by personal injury attorneys on a contingency fee basis. This means that you do not need to pay money upfront to hire an attorney and the attorney only gets paid if they win your case. A consultation with a sexual harassment attorney in Lakeland, Florida is free.

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October 25, 2017