When Sexual Harassment Turns Into a Workers’ Comp Claim
By Frank Ferreri, March 11, 2024
If you read our pre-Valentine’s Day piece on sexual harassment, you are aware the wrong kinds of advances can lead to EEO headaches. But did you know sexual harassment may also lead to a compensable injury under the Federal Employees’ Compensation Act (FECA), which covers emotional conditions causally related to compensable factors of an employee’s Federal employment?
However, as the following cases show, while a claim is easy to file, it can be difficult for claimants to prevail.
Under Employees’ Compensation Appeals Board (ECAB or the Board) cases, such as Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004), an employee can establish she sustained an emotional condition in the performance of duty by submitting all of the following:
- Factual evidence identifying and supporting employment factors or incidents alleged to have caused or contributed to her condition.
- Rationalized medical evidence establishing that she has an emotional or psychiatric disorder.
- Rationalized medical opinion evidence establishing that the identified compensable employment factors are causally related to her emotional condition.
“Rationalized medical opinion evidence” refers to medical evidence that includes a physician’s rationalized opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment factors and must be based on a complete factual and medical background of the claimant, be one of reasonable medical certainty, and be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by appellant.
To understand what the ECAB analyzes in claims related to alleged sexual harassment, consider the following decisions.
Kennedy and U.S. Postal Service, No. 04-874 (ECAB Jul. 27, 2004)
A postal clerk alleged she sustained an emotional condition causally related to harassment in the form of a supervisor sitting on a ledge in front of her and propping his leg up. The supervisor allegedly stood “very close” or walked up behind her. The clerk also alleged the postmaster discussed one of the clerk’s personal relationships. According to the clerk, these actions caused her stress and aggravation of a preexisting condition, which was an internal carotid artery aneurysm.
ECAB’s ruling: The clerk failed to implicate any compensable factors of her employment in the development of her alleged emotional conditions. There was no evidence that anyone heard the conversation about the clerk’s personal relationship, and when the supervisor learned his ledge-sitting and following made the clerk uncomfortable, he ceased the behavior. ECAB concluded the clerk did not establish compensable factors of employment caused her emotional condition.
Donahue and Department of the Army, No. 01-1006 (ECAB Jan. 9, 2002)
A supply technician alleged a supervisor would on an “almost daily” basis “grab and slap her buttocks and make sexual innuendoes with regard to having sex.” This went on, according to the technician, from 1993 until 1997. This supervisor on one occasion came to the technician’s house at 11 p.m. on the pretext of asking about her husband, who was in the hospital, and made sexual advances that amounted to a sexual assault.
ECAB’s ruling: The technician did not bring enough evidence to the table to support her claim. Although the technician alleged she was subjected to sexual harassment, she continued to work at her job and made no allegations regarding sexual harassment until she filed her claim in August 1998 — nearly five years after the alleged sexual assault occurred. ECAB dismissed the case, finding the technician did not meet her burden of proof in establishing that she sustained an emotional condition in the performance of duty.
Lofti and Department of Health & Human Services, Health Care Financing Administration, No. 95-2756 (ECAB Sept. 19, 1997)
A health insurance specialist alleged she sustained anxiety, chest pains, heart palpitations, insomnia, pneumonia, myalgia, indigestion, laryngitis, and headaches due to sexual harassment by a coworker. According to the specialist, the coworker sent her cards and letters for a year, made lewd remarks, and would visit her cubicle in a tearful and angry state. The specialist also alleged there were “physical incidents in which he forcibly tried to kiss” her.
ECAB’s ruling: The Office of Workers’ Compensation Programs, which ruled against the employee, erred in finding that harassment by coworkers can only be considered a compensable employment factor if the employing establishment is aware of such harassment and fails to intervene. On the contrary, ECAB found evidence that the specialist sustained an emotional condition and several physical ailments due to sexual harassment by a coworker. In particular, the specialist presented evidence that included a detailed factual statement and corroborating statements from the employing establishment demonstrating that the described incidents occurred as alleged. As a result, ECAB sent the case back to OWCP.
An important lesson comes out of the Lofti case: Unlike in the Title VII context, whether or not a sexual harassment charge turns into a compensable workers’ compensation claim does not depend on whether the agency took appropriate steps in response to the harassment. Instead, it depends on whether the employee suffered an injury that was causally related to her job.
So, what can agencies do? A good place to start is stressing as much as possible that sexual harassment has no place in the Federal workplace. Even if it seems like “just a joke,” the job is no place for that kind of humor, which can literally cause an injury. Info@FELTG.com
