Civil Justice Practitioners

Employment

A sexual assault victim's employment is likely to suffer major disruptions after a sexual assault. Absenteeism may skyrocket, productivity often plummets, and an assault by a coworker or at a work location will usually trigger an even more acute employment crisis that, without legal intervention, will likely result in a victim's resignation or termination.⁴⁷ The federal Family and Medical Leave Act and its state counterparts, Title VII, and state anti-discrimination laws all provide potential sources for employment protection rights.⁴⁸ Unions, too, may have negotiated worker protection policies.

If victims become physically or emotionally disabled as a result of a sexual assault, they may be entitled to reasonable accommodations and protection from discrimination under the Americans with Disabilities Act (42 U.S.C. § 12112 (2004)). A disability is defined as any impairment that substantially limits a major life activity, such as walking, standing, thinking, lifting, or taking care of one's self (§ 12102). Victims are also protected under the Act even if they are only perceived as being disabled, regardless of whether they have some actual disability. The act requires that the employer provide reasonable accommodations to the victim, as long as she or he is able to perform the essential functions of the job. A modified work schedule, transfer to a different location, and changes in the workspace or equipment all qualify as reasonable accommodations, and employers cannot discriminate against qualified employees who request such accommodations.

Victims who are terminated or leave their job due to a sexual assault may also qualify for unemployment compensation.⁴⁹ In Massachusetts, for example, an employee who leaves work or is discharged from her job because of domestic violence is eligible for unemployment compensation.⁵⁰ Although the statute is intended to benefit battered women, the definition of domestic violence is broad enough to include many victims of sexual assault. The statute specifically provides benefits to victims who have been in a dating or engagement relationship with the perpetrator. The statute also defines abuse as attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm and/or causing another to engage involuntarily in sexual relations by force, threat, or duress.

If the assault is directly related to employment (e.g., when the perpetrator is a coworker, when the assault takes places at work), a victim may need and be entitled to more protection in the work environment. A sexual assault at work, as well as an employer's failure to appropriately address or protect against that assault, may constitute sexual harassment in violation of federal and state laws prohibiting sex discrimination in the workplace.