3 Excuses an Employer Might Make When They are Accused of Battery and/or Sexual Harassment

3 Excuses an Employer Might Make When They are Accused of Battery and/or Sexual Harassment


3 Excuses an Employer Might Make When They are Accused of Battery and/or Sexual Harassment


3 Excuses an Employer Might Make When They are Accused of Battery and/or Sexual Harassment


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 the battery and sexual harassment claims.



  1. “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, the 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, the 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.



  1. “I was just joking, you’re not even hurt!”


Satisfying the second element of the 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.


  1. “You didn’t say no”


Consent is one of the elements that need 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 the 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 the battery have been met and the lawyer may also ask through questions about the sexual harassment the employee has experienced.