A sexual harassment claim from a Korean temp worker could lead to the first time Korean courts consider sexual harassment as a workplace injury.
Here’s the background on the Korean temp worker, via Arirang TV report: The [unnamed] woman had been working at a car factory for 14 years. Two of her bosses were allegedly sexually harassing her with inappropriate text messages and phone calls, which caused psychological damage.
According to the Korean Metal Workers’ Union, her doctor claims she’s suffering from insomnia and depression as a result of the harassment.
But the Korea Workers’ Compensation and Welfare Service says she must prove a direct link between these symptoms and the harassment.
If she’s successful in doing this, and the harassment is proven to be a direct result of her occupation, it will be a first for Korea.
How many predict she will be successful?
As far as workers’ comp claims go, sexual harassment as an injury is not even close to outrageous (like tripping over your dog while working from home).
In America, it varies by state and by case.
A report by Streich Lang labor attorneys found that some state courts “have reasoned that such conduct does not ‘arise out of the employment’ or the injury is non-physical in allowing employees to sue outside of the workers’ compensation system.”
The report said that in three states – Arkansas, California and Florida – courts have upheld that sexual harassment-related claims aren’t considered a “day-to-day” workplace risk.
Attorneys from the firm Foley & Lardner found that a hostile work environment due to sexual harassment is covered under workers’ comp in New Jersey. The N.J. Supreme Court found an employer was liable, though in this case the harassment extended to bodily injury.
There was no word of bodily injury in the Korean woman’s case; she is claiming only emotional distress.
In Atlanta, emotional trauma is fair game.
An online guide to Atlanta Workers’ Compensation says, “Sexual harassment includes claims of … emotional distress.” When it comes to workers’ comp, the decision is often based on “whether the injuries, which for the most part center on emotional distress/injuries with physical manifestations, were caused by the intentional conduct of the employer or could be deemed to have been accidental,” and caused greater stress than most workers deal with.
According to our own in-house legal counsel, a sexual discrimination lawsuit might not only be less time-consuming, but more compensable. He said, “Emotional distress before a workers’ comp hearing examiner is likely a longer and more drawn out process and I would imagine you can’t seek compensable damages beyond the loss of wages.”
These are a few examples I could find of whether or not emotional distress from sexual harassment is compensable, at least in America.
Obviously I know less about Korean workers’ comp laws, but in this case, it sounds like it might be more rewarding to go the sexual harassment lawsuit route.