The
word "battery" is a word you would normally hear while watching your
favorite crime drama, but it actually can occur in your very own
workplace. Under civil law, particularly in employment law, employees
are entitled to bring a claim against their employer if they have been a
victim of battery in the workplace. The tort claim requires the
employee suing their employer to prove that they were touched or the
employer caused the employee to be touched and that the touching was
intended to cause the employee harm or cause he or she to find the
touching offensive.
An Employment Lawyer
is the type of attorney who specializes in this type of situation,
especially when a single claim may overlap with another claim. Battery
claims do not always come alone though, they are often accompanied by
sexual harassment. There are three features of battery, all of which
have the potential to have a sexual harassment element to each of them. Sexual harassment in the workplace
is prohibited by law and employees have the right to sue if they become
a victim of unwelcome touching or inappropriate comments.
Below are some of the excuses employers have in response to battery and sexual harassment claims.
- "I didn't mean to hurt or offend you"
If
an employee follows through on pursuing a claim against their employer
for battery, they need to prove the employer had intent. On the
surface, intent would seem to mean that the employer made it his or her
goal to hurt the employee, however this is not the case. When making out
the elements of battery, intent is proven by showing the employer
intended to do the act that caused the harm. For example, person A
smacked person B's buttocks in what person A claimed was just a "love
tap" while person B suffered extreme pain in their tailbone, extreme
humiliation, and or suffered extreme anxiety from this so called "love
tap". In this example, although person A did not intend to hurt person
B, person A did intend to commit the act, smacking B's buttocks, which
caused person B harm. Therefore, in that example person B would be able
to prove intent in their battery claim against person A.
- "I was just joking, you're not even hurt!"
Satisfying
the second element of battery can be tricky in that it is based on
contact that is harmful or offensive. Of course physical harm is more
concrete and may be easier for an employee to show if they had a bruise
or mark, but how do you prove "offensive"? The law in California says
that touching is offensive where a reasonable person would find that it
offended or wounded their personal dignity. For example, Sally was an
administrative assistant at a marketing agency. Her job required her to
spend a lot of time filing paperwork and restoring it in the filing
room. One day while she was trying to place a file box on a high shelf,
her boss Greg saw she couldn't reach and said "here let me help you" and
picked Sally up by placing his hands on her buttocks and waist. Here,
although this touching did not harm Sally, she found the touching to be
offensive and a reasonable person in Sally's position would likely find
the touching of one's buttocks and waist by their boss to be offensive.
Note
that harmful or offensive conduct in a battery claim is negated where
the touching was unavoidable, it was for a legitimate reason, or it was a
touching that is acceptable in the course of everyday life. This means
that if the harmful or offensive touching took place during an event
that falls under one of those categories, then a claim for battery may
be voidable. For example, let's look at Sally and Greg's situation
again. This time, Sally was standing on a ladder to reach the shelf and
lost her balance but Greg caught her before she hit the ground. Here,
even though Greg may have touched her in a way that might be harmful or
offensive, the touching may be considered as unavoidable because she
fell on to Greg.
The
way in which harmful or offensive is identified can be complex
depending on the circumstances. It is best to have an Employment Lawyer
analyze the facts of the case to ensure you get a professional and
thorough opinion.
- "You didn't say no"
Consent
is one of the elements that needs to be made out in a battery claim.
Did the employee tell the employer that he or she wanted to be touched?
Did the employee welcome the touching? Often when a battery claim is
brought against an employer, they will claim that they thought consent
was not necessary. Consent is an important factor in making a claim
against an employer in battery. Where there is no consent for the
touching, the employee's case is strengthened.
As seen in the examples above, battery and sexual harassment
often go hand-in-hand. All three elements of battery need to be met in
order to have a battery claim and in addition to the battery claim, an
employee may have a sexual harassment claim. If an employee has been
sexually harassed by unwanted touching, he or she may have a claim
against their employer for sexual harassment in addition to the battery
claim. Again, sexual harassment can be characterized as unwanted
touching which is where the battery usually ties into the sexual
harassment claim.
Taking
all of the information and examples into account, an employee may be
able to identify similarities in their own situation at work. Of course,
every case is different and it is only with the guidance of legal a
professional such as an Employment Lawyer that an employee will know if
they have a claim worth pursuing. The Employment Lawyer will want
details of the circumstances to ensure that all elements of battery have
been met and the lawyer may also ask through questions about the sexual
harassment the employee has experienced.