The “Weinstein Effect” and Workers’ Comp: When Sexual Harassment or Assault is a Work-Related Injury

Anyone who is even half-paying attention to the news has been reminded that, despite years of open discussion and training around the issue of appropriate behavior in the workplace, some things just haven’t changed. There are still predators, idiots and bores among us. As the season for office holiday parties is upon us, it occurs to the author that there are those in the audience who may not realize that a sexual harassment claim could be the foundation of a workers’ compensation injury claim. And so, here I am to enlighten or scare you, depending on your perspective. You’re welcome.

Picture this: It is 4:15 p.m on Thursday, and the company holiday party is in full swing. The staff from HR have festively decorated the cafeteria and co-workers are enjoying both the abundant buffet and the open bar. Norm, from Accounting, has already had just a bit too much holiday “cheer” from the bar, and he begins to grab female co-workers by the arm or whatever body part is closest to him, with the intention of convincing the lovely ladies from the second floor to dance with him. Not only do the ladies from the second floor not want to dance, they don’t want to dance with Norm, and they certainly don’t want Norm grabbing them indiscriminately. Even though Norm did the same thing at last year’s holiday party, no one from HR appears to notice Norm’s behavior and the second floor supervisor does nothing to intervene, despite seeing Norm acting like an idiot from across the room. On Friday morning, Alice, from the second floor, calls HR and reports that she cannot come in to work because she is mentally stressed about having to see Norm and relive his terrible behavior from the evening before. Alice says he did the same thing last year and no one did anything about it and she just is so upset. Alice doesn’t elaborate on what, exactly, Norm did, and HR doesn’t ask for details. Alice tells HR she is going to see a therapist and will let HR know what the therapist recommends as far as returning to work in the future. HR notifies Alice of her FMLA rights, but do they also recognize that Alice may have just reported a work-related injury? They do, after reading this little gem!

Alice will need simply to testify that she was compelled to attend the holiday party, as anyone who skips it is at risk for not being seen as a “Team Player” and therefore not in line for promotions. She’s heard her supervisor stress the need to belong to the “Team”, and her supervisor even rounded up the “Team” to all go to the holiday party together. She’ll testify that the company knew she would have to be at the holiday party because of the “Team” ethos, and that she understood that the company feels that such bonding experiences during normal working hours are just part of the job. Even if HR reacted promptly once Alice reported Norm’s behavior, Alice is going to be awarded workers’ compensation benefits if she brings this claim in Maine because mitigation doesn’t matter in the context of a work-related injury.

Even more disturbing are the stories of people assaulted at work or in the parking lot leaving work. Again, if the two elements of “arising out of” and “in the course of” work are met, such an assault may result in a work-related injury claim. Also, in Maine, a purely mental stress injury can be compensable, as long as, objectively measured, it would cause such a stress injury and the stress injury does not arise out of a good faith business action.

What can a responsible employer do? First, train all employees on sexual harassment and reporting protocols. Post reporting resources in common staff locations, and make sure that all supervisors are trained in what to do if they recognize harassment, especially the need to promptly react and intervene. Next, consider limiting the access to alcohol at the holiday party or at any celebratory event that takes place at work and during work hours. Inappropriate behavior is more likely to occur when a person has lowered inhibitions due to the influence of alcohol. Finally, when a report comes to HR, maintain a compassionate and open dialogue with the employee. Promptly report the alleged injury to your workers’ compensation insurer and share any background details that might enable a swift evaluation of liability. In Maine, the employer may also direct the employee to the company preferred provider for treatment during the first ten days of treatment, so taking advantage of that ability may result in a less devastating claim in the end. Finally, recognize that a culture of civility will breed civil employee relationship, so management must, unlike Mr. Weinstein and his ilk, model the behavior expected of the employees. And, in that way, we can hope for an end to any need for #metoo.

For more information on recent developments in labor, employment and workers’ compensation law, please contact a member of Verrill Dana’s Labor and Employment Practice Group.