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Sexual Assault, Sexual Harassment, and Workplace Violence: A New Take For Employers

April 2019 marked the official 18th anniversary of Sexual Assault Awareness Month (SAAM). With the recent #MeToo movement, sexual assault and sexual harassment issues have never been such a large part of our national conversation.  Our YouTube channel contains an in-depth 1-hour webinar on the important issue of sexual harassment in the workplace which you can view here.

This month, however, we want to give attention to the correlation between workplace sexual harassment and workplace violence.  Studies show that many times individuals who are sexually abusive are also physically violent as well.  This data presents workplace violence issues for employers

In September 2018, national headlines exclaimed “3 Workplace Shootings in 3 States in 24 Hours” when an employee opened fire at a software company outside Madison, Wisconsin; a domestic violence offender awaiting a hearing shot 4 people inside a Pittsburgh courtroom; and a Rite-Aid employee killed 3 co-workers and herself outside a distribution center.  Just last week, there was a shooting at a synagogue resulting in injuries and death.  While classrooms previously prepared children safety in the event of tornadoes or earthquakes, they are now staging active shooter drills. Safety and HR professionals must similarly answer the call to address today’s workplace hazards, which include sexual harassment and violence.

 

The Link Between Sexual Assault and Domestic Violence

  • In Cuyahoga County, Ohio, researchers at the Begun Center for Violence Prevention Research and Education at Case Western Reserve University closely examined the criminal histories of 259 known perpetrators of sexual assault whose existing offender DNA profiles were a match to recently analyzed sexual assault kits that had been backlogged. The researchers looked specifically at violent crimes committed by these offenders before and after the collection of the backlogged rape kit: 14% of these serial offenders had at least one reported domestic violence arrest prior to the sexual assault in which the backlogged rape kit was collected, and 37% of them had at least one domestic violence arrest afterward. This data suggests that, regardless of whether their victim was an intimate partner or a stranger, these perpetrators became more violent toward intimate partners following the unprosecuted sexual assault.
  • This DOJ report indicates between 40% and 45% of women in abusive relationships will also be sexually assaulted during the course of the relationship.
  • Victims who are both physically and sexually abused reported more risk factors for being killed by their partner than victims who experience one form of abuse.
  • Abusers assault people of all genders, races, ages, social classes, and ethnicities. Women who are disabled, pregnant, or attempting to leave their abusers are at greatest risk for sexual assault.

 

Why It Matters To Employers

Workplace violence is any act against an employee that occurs in the work setting and negatively affects the employee physically or psychologically.

  • Roughly TWO MILLION violent crimes occur at work each year.
  • 25% of workers reported that customers, clients, patients, or other members of the general public subjected them to violent behavior in the workplace.
  • 13% of those surveyed indicated that members of management instigated some form of violent behavior toward them.
  • There is an especially high rate of workplace violence in healthcare and social services industries, so much so that OSHA is considering a standard to protect healthcare and social assistance industry employees from workplace violence
    • Other high-risk industries include late-night retail (convenience/liquor stores, gas stations), correctional facilities, and taxi driving.
  • The U.S. Bureau of Labor Statistics reported that an astonishing 43% of work-related homicides of females were at the hands of a relative or domestic partner.

  • If having a potential homicide at your workplace is not distressing enough, the price tag for such a tragedy can be staggering. In 1993 the average(mean) cost of a single workplace homicide was estimated at $804,035. Adjust for inflation over the last 26 years, the price tag is now in the millions.

While many managers view workplace violence as the result of a deranged, psychopathic or troubled employee, on the contrary, an outbreak of violence in a workplace is usually due to chronic unresolved conflict which should have been noticed and properly managed. The company may have liability if the person who committed the act is a client or customer or has an employment relationship with the company as an employee or contractor. Below are some potential liability issues to consider.

  • OSHA
    • Possibility of general duty clause implications
  • Tort Law
    • Negligent hiring, negligent retention, intentional infliction of emotional distress, assault, inadequate security, battery, etc.
  • Private/Public benefits
    • Workers’ comp, disability, FMLA, unemployment
  • Employee handbook issues
    • Especially where bullying/violence policies are implicated
  • “Forced entry” laws
    • Allows employees to keep guns locked in their cars, while parked at work, regardless of the employer’s rules to the contrary, (i.e., forces property owners to allow guns on their property whether they want to or not)
    • Ohio’s “guns in trunk” law

 

What You Can Do

Employers should promptly develop effective workplace violence and workplace harassment policies.  Also, employers must address any threatening or inappropriate behavior in a timely fashion.  The investigation process should be clear, appropriate, and effective.  Finally, documentation is critical to defend against a lawsuit so employers must create a documentation process that all managers and supervisors can easily follow.  And remember, don’t ignore the written provisions in your employee handbook or retaliate against a complainant.

Create a safe and secure workplace with harassment training, an easy reporting procedure, limited public entries into the workplace, emergency procedures, and more. Don’t forget about the parking lot. The Begun Center for Violence Prevention Research and Education’s Sexual Assault Kit Research Project also found that vehicles appear to be frequently involved with sexual assaults as means of approaching, transporting, and/ or the site of the sexual assault. In fact, a quarter (25.2%) of all sexual assaults involved a vehicle.

If you have questions about your handbook policies, investigative procedures, trainings, or more, please contact a member of our Labor & Employment Law practice.

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Events

  • May 6-10 is the 6th Annual National Safety Stand-Down To Prevent Falls in ConstructionRead more

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