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Your Rights and Options When Employers Fail to Prevent Sexual Assault
If you’ve experienced a sexual assault at work, you may be able to hold your employer accountable if they failed to take appropriate action or comply with what California law requires. Find out when an employer is liable, what your rights and legal options are, and what to do next.
What Legal Responsibilities Do Employers Have?
In many cases, a sexual assault in the workplace is preceded by ongoing attempts to make advances and words and actions that would qualify as sexual harassment. California law requires employers to take action to prevent this type of sexual harassment, such as having a written sexual harassment policy, prevention training for managers, and a specific process through which employees can report sexual harassment.
If an employee reports sexual harassment, the employer must immediately address it. This includes thoroughly investigating the complaints and taking necessary remedial action, such as suspending or firing the aggressor. If the employer fails to investigate the complaint or take appropriate action, they could be deemed negligent in their behavior and be held liable for a sexual assault or harassment that happened as a result.
How Do You Prove Employer Negligence?
Suing an employer for failing to take action against sexual harassment claims (or not following the laws requiring policies, awareness, and documentation) is a civil suit that generally centers around proving that the employer was negligent in their actions (or failure to act) and that you were harmed as a result. This means that you’ll need to show that the employer knew there was a risk of a sexual assault or should have known, such as if there were multiple reports or complaints or even allegations of previous incidents.
If you can show that an employer failed to take action or enforce its policies against sexual harassment in the workplace and that that created an atmosphere that made the sexual assault more likely, it can establish the necessary legal connection. The employer can then be held liable and forced to pay monetary damages for the resulting harm they caused you.
An attorney plays a critical role in this process by helping you understand how negligence factors into your case and what evidence is needed to prove it. An attorney is also critical to help gather this evidence via formal discovery, including interviewing witnesses, obtaining important emails and documents (including security footage), and taking formal depositions under oath of the harasser and employer representatives.
What Are Your Rights as an Employee and a Victim?
Sexual harassment in the workplace is a violation of Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act, and a sexual assault is both a criminal act as well as a civil wrong for battery and/or assault. As an employee, you have the right to a safe workplace that is free of harassment. This includes being able to file a complaint about a coworker’s behavior and having your employer investigate and take any necessary corrective action promptly. You also have the right to protection from any retaliatory behavior for reporting harassment or an assault. For example, if you are demoted or fired after reporting your boss assaulted you, this could be considered unlawful workplace retaliation and is also against the law.
As a victim, you also have the right to report the sexual assault to the appropriate law enforcement agency. You do not have to let the matter be handled solely by your employer. You also have the right to pursue civil claims against your assailant and/or your employer if their negligence contributed to the assault.
How Does a Civil Suit Against Your Employer Work?
If you were assaulted at work or by a coworker and you want to bring a lawsuit against your employer to ensure they face consequences, it’s essential to understand what kind of claim this is and the legal process involved. In most cases, this is a lawsuit that claims that there has been a violation of your civil rights, such as the protections against harassment in the Fair Employment and Housing Act.
Before you can file a civil rights lawsuit against your employer, you are generally required to file a complaint with the California Civil Rights Department (CRD). The CRD allows for two options: (1) report the complaint and obtain an immediate (automatic) Right-to-Sue letter, which allows you to then file a lawsuit, or (2) request an investigation by the CRD into the unlawful behavior. If the CRD investigates and discovers evidence that your civil rights were violated, it will provide a Right-to-Sue notice that allows you to then file a lawsuit against your employer. For either of these options, it is always best to have an attorney assist you with submitting the CRD complaint, as there are many critical parts that must be reported to properly satisfy the Right-to-Sue process.
Once you obtain a Right-to-Sue notice from the CRD, you can then file your civil lawsuit in court. These cases can be challenging to prove, and the burden of proof always rests with the plaintiff employee who filed the lawsuit.
What Type of Attorney Should You Hire for a Workplace Sexual Assault Case?
It is important to retain an experienced employment attorney who regularly litigates sexual harassment and assault cases and (more importantly) takes sexual assault cases to trial. Although it is true that roughly 90% of sexual harassment and assault cases will settle before trial, hiring an attorney with proven trial experience will put much more pressure on the employer to settle your case for a fair amount. This is because the threat of a public trial and large verdict is much higher when you are represented by an attorney with a history of successful trial verdicts.
You will also want to hire an attorney who only practices employment law as their primary area of practice, takes cases on a contingency basis (meaning you do not need to pay for fees and expenses up front), and has a law firm that does not accept too many clients – meaning the experienced attorney will actually have time to litigate your case rather than “farming” your case out to less-experienced lawyers. It is important that the most experienced employment attorney has day-to-day involvement in the decisions of your case.
As mentioned above, it’s common for the parties to reach a confidential settlement before the trial, as the employer often wants to avoid any negative publicity or risk of a large jury verdict. However, the amount of your settlement will largely depend on the facts of your case and the type of attorney you choose to represent you.
What Steps Should You Take After a Sexual Assault at Work?
One of the most important things to do after experiencing a sexual assault at work or by a coworker — after seeking medical attention, of course — is to notify your employer. It’s imperative that you follow your company’s policy for notification so that the employer has the opportunity to take appropriate action. You should also report the assault to the police.
Keep any evidence related to your case, such as copies of the paperwork you submitted when notifying your employer and your medical records. This can help establish a timeline and show that you did what was required after the incident.
It’s also critical to speak to an attorney as soon as possible. Meeting with a lawyer who has experience with workplace sexual harassment cases and civil rights violations can ensure you know your rights and how to protect them. If you experienced sexual harassment and your employer didn’t do anything about it, contact the team at Odell Law, PLC, by calling 949-771-8173.
