Sex Assault in the Workplace

Employer Liability for Sexual Assault by Coworkers

Employer liability for sexual assault committed by a coworker is analyzed under a different framework than assault by a supervisor. Where supervisor misconduct can lead to strict or near-strict liability, coworker misconduct is generally evaluated under a negligence standard. The question is what the employer knew, when it knew, and what it did in response.

The negligence standard

Under Title VII and analogous state and city laws, an employer is liable for coworker harassment or assault if the employee shows that the employer knew or should have known of the misconduct and failed to take prompt and effective corrective action. Knowledge can be actual, as when a complaint was made, or constructive, as when the misconduct was open and obvious.

What prior notice looks like

Prior notice can take many forms. It includes:

Prior complaints about the same coworker from other employees
HR files documenting earlier incidents
Terminations or discipline of the coworker at prior employers, if the current employer failed to check references
Openly hostile conduct that supervisors observed but did not act on
Anonymous complaints, particularly when a pattern developed

The employer's response

Even where an employer had no prior notice, its response after learning of the assault matters. A prompt, thorough, and impartial investigation followed by proportionate discipline generally satisfies the employer's obligation. Failures to investigate, minimize the incident, or retaliate against the survivor typically defeat the employer's defense.

Negligent hiring and retention

Beyond employment discrimination law, the employer may face tort claims for negligent hiring, retention, and supervision. These claims focus on whether the employer conducted an adequate background check, whether it retained an employee it knew or should have known posed a risk, and whether it adequately supervised the individual.

New York and New Jersey specifics

The New York State Human Rights Law was amended in 2019 to eliminate the "severe or pervasive" standard for harassment claims, replacing it with a lower threshold requiring only that the conduct rise above petty slights or trivial inconveniences. This makes it easier for employees to bring viable claims for coworker harassment and assault. The New Jersey Law Against Discrimination is similarly protective, and New Jersey courts have long held employers to a high standard of accountability for known hostile conduct.

Civil action against the coworker

The coworker who committed the assault can be sued individually for battery, intentional infliction of emotional distress, and other torts. This claim runs parallel to any claim against the employer and can proceed regardless of the employer's ultimate liability.

Practical steps

Employees who have been assaulted by a coworker should report the incident promptly in writing, cooperate with any investigation, preserve evidence, and consult with counsel before making significant decisions about continued employment or a formal filing.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual assault and harassment across New York and New Jersey. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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