On December 4, 2015, the Appellate Division decided the can of Rose Fonrose Louis v. Burger King Corp, and held that the petitioner’s sole remedy for sexual harassment at work was in the Workers’ Compensation court. The case arose during Petitioner’s employment at Burger King in the Monmouth Mall. During the length of employment, Petitioner was sexually harassed by an assistant manager who made inappropriate sexual advances while they were both in a walk-in freezer. While the harassment was occurring, the store manager opened the door of the walk in freezer, looked at both employees, and closed the door.

Testimony revealed that while the manager had the door open, the assistant manager stopped his harassment. Later the same day, the assistant manager again made inappropriate sexual advances toward the petitioner while both were working. Petitioner did not report the incidents, however the following day her husband called to complain to the manager about how his wife was treated and he also made a visit to the store to follow up. At that time, Burger King had a written policy prohibiting workplace harassment, and that policy had been issued to all employees.

In following and consistent with the harassment policy, the manager reported the incidents to the district manager, who initiated an investigation and transferred the offending assistant manager to another store. Several days later, the petitioner also filed a complaint with the police department, who charged the assistant manager with fourth-degree criminal sexual contact.

Petitioner filed a workers’ compensation claim for the sexual assault. The claim was ultimately settled for a lump sum settlement for $7,500. In addition to filing the workers’ compensation claim, the petitioner and her husband filed a civil suit against that particular Burger King store, the manager, and the assistant manager. The defendants moved for summary judgment, arguing that the civil suit was barred because the Division of Workers’ Compensation had exclusive jurisdiction. The Appellate Division agreed, holding that while the manager might have acted negligently because of failing to initially take any action against the assistant manager, his actions were not of the type that arose to the level of an intentional wrong under the Workers’ Compensation Act.

Generally, when an employee’s injuries fall within the coverage of the Act, the employee is barred from seeking further legal redress from an employer or co-employee. In order for the employer to lose this immunity, the injured worker must prove that (1) the employer knew that his actions were substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances must be more than a plain fact of industrial employment and be beyond anything the Legislature intended the Workers’ Compensation Act to immunize. The Petitioner was not able to prove those factors in this case. The intentional wrong exception to the Workers’ Compensation Act is virtually impossible to meet, and this case shows us another example of how the Appellate Courts will handle these issues.

If you or your family is experiencing workplace harassment, it is strongly recommended that you seek experienced counsel immediately.