Anderson v. Save-A-Lot Ltd.

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FILED

FOR PUBLICATION

BERNICE ANDERSON, ) Filed: January 25, 1999

January 25, 1999

)

Plaintiff, ) SHELBY COUNTY

)

v. ) Hon. Floyd Peete

) Chancellor Cecil W. Crowson

SAVE-A-LOT, LTD., a SUPERVALUE )

COMPANY, d/b/a SAVE-A-LOT ) Appellate Court Clerk

FOODS, and LIBERTY MUTUAL ) Supreme Court

INSURANCE COMPANY ) No. 02-S01-9610-CH-00093

Defendants-Appellants )

FOR PLAINTIFF FOR DEFENDANT

Erich M. Shultz Jack A. Childers, Jr.

Memphis, Tennessee Bateman, Gibson & Childers

Memphis, Tennessee

OPINION

TRIAL COURT AFFIRMED DROWOTA, J.

OPINION

In this workers’ compensation case, we consider for the first time whether an

employee who has been sexually harassed by a supervisor in the course of

employment may recover workers’ compensation benefits from the employer.

Finding that the plaintiff’s alleged injury did not arise out of her employment, the

Chancery Court of Shelby County granted summary judgment to the employer and

its insurance carrier, the defendants. The Special Workers’ Compensation Appeals

Panel, upon reference for findings of fact and conclusions of law in accordance with

Tenn. Code Ann. § 50-6-225(e)(5) (Supp. 1998), reversed and remanded the case

for a determination of factual issues. For the reasons that follow, we affirm the

decision of the trial court granting summary judgment to the defendants.

I. FACTS & PROCEDURAL HISTORY

Since this case is presented to us on summary judgment, we summarize the

evidence in the light most favorable to the plaintiff, the non-moving party. Byrd v.

Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). The record demonstrates that the

plaintiff, Bernice Anderson (“Anderson”), was employed by defendant Save-A-Lot

Foods as a co-assistant manager of a grocery store in Memphis. Anderson testified

in a deposition that she was repeatedly sexually harassed on a daily basis by her

immediate supervisor, Kenneth Bush (“Bush”), during the course of her employment.

Anderson’s relationship with Bush began when Anderson worked for a Save-A-Lot

store on Jackson Avenue. Bush, an assistant manager at the time, worked at the

Jackson Avenue store for two or three months while he trained to be a manager.

Anderson stated that although Bush did not make any sexually inappropriate remarks

during this time period, he told Anderson that he did not like her and that he did not

like the fact that he had to ask her to show him how to perform certain tasks.

After Bush was promoted to manager, he was eventually transferred to a

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Save-A-Lot store on Frayser Boulevard. Subsequently, Bush asked the manager of

the Jackson Avenue store to transfer Anderson to the Frayser Boulevard store. Not

realizing that Bush was the manager of the Frayser store, Anderson agreed to be

transferred to the Frayser store, where she worked for approximately one year.

When Anderson first started working in the Frayser store, Bush approached her,

stating that he “knew how I got my job and what I had been doing with the other

managers, [and] that he wanted the same thing.” Anderson testified that Bush

routinely followed her around the store, making lewd gestures and remarks to her.

For instance, it is alleged that Bush repeatedly made graphic sexual comments about

her body, requested that Anderson engage in sexual relations with him and accused

her of having sex with co-workers. Bush would often grab Anderson’s hand or bump

up against her when he made these remarks. Anderson also alleged encounters in

which Bush would “literally run up to me and get as close as he could to me and stare

me up and down and then bust out laughing.” In addition, on numerous occasions

Bush, in the presence of Anderson, made inappropriate remarks about the body parts

of the cashiers in the store.

Anderson explained that she feared notifying other Save-A-Lot supervisors of

Bush’s conduct, because Bush threatened to fire her and even stated that he knew

where she lived and that he would kill her if she told anyone about the harassment.

Wary of losing her job if she reported Bush’s behavior, Anderson explained: “I tried

to hold onto my job, keep my job, because I need my job.” Ultimately, after Anderson

reported the incidents to other management employees, an investigation was

conducted, and Anderson was transferred to another store. Anderson alleges that

as a result of Bush’s harassing conduct, she suffers from post-traumatic stress

disorder and depression and, consequently, has incurred medical expenses and has

been unable to work. A psychiatrist who examined Anderson gave her a sixty (60%)

percent permanent psychiatric impairment rating.

Anderson filed this Complaint for Workers’ Compensation, seeking

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reimbursement for her medical expenses and lost earnings. In addition, Anderson

filed a complaint in federal court alleging violations of the Tennessee Human Rights

Act and Title VII of the Civil Rights Act of 1964. After considering the deposition

testimony proffered by the plaintiff, the trial court in the present case granted

summary judgment to the defendants. It is unclear from the record whether the trial

court found that a plaintiff may not recover workers’ compensation benefits for sexual

harassment injuries as a matter of law, or whether the trial court found that Anderson

failed to demonstrate in this particular instance that she suffered an injury that arose

out of her employment. In an opinion written by Judge Don Ash, the Special

Workers’ Compensation Appeals Panel reversed the decision of the trial court.

Concluding that Anderson’s injury arose out of and in the course of her employment,

the Panel found that Anderson would not have suffered an injury “but for” her

employment.

II. ANALYSIS

A. Standard of Review

Summary judgment is appropriate if the movants, the defendants, demonstrate

that no genuine issues of material fact exist and that the defendants are entitled to

a judgment as a matter of law. Tenn. R. Civ. P. 56.03. We must take the strongest

view of the evidence in favor of the nonmoving party, Anderson, allowing all

reasonable inferences in favor of Anderson and discarding all countervailing

evidence. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998) (citing Byrd v. Hall,

847 S.W.2d at 210-11). Since our review concerns only questions of law, the trial

court’s judgment is not presumed correct, and our review is de novo on the record

before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997); Bain

v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

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B. Tennessee Law

Tennessee’s Workers’ Compensation Law, Tenn. Code Ann. §§ 50-6-101 et

seq. (1991 Repl. & Supp. 1998), applies to covered employees who suffer from

“personal injury or death by accident arising out of and in the course of employment

without regard to fault as a cause of the injury or death.” Tenn. Code Ann. § 50-6-

103(a) (1991 Repl.); see also id. § 50-6-102(a)(5) (Supp. 1998). Under this two-

pronged test, a plaintiff must prove by a preponderance of the evidence that: (1) the

injury arose out of her employment; and (2) the injury occurred during the course of

her employment. Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997).

There is no dispute in this case that the alleged injury occurred in the course

of Anderson’s employment with Save-A-Lot. Viewing the “time, place and

circumstances” surrounding the alleged harassment, it is clear that such incidents

occurred while Anderson was on the premises of Save-A-Lot, performing duties on

behalf of her employer. Id.; Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993). The

crucial inquiry in this case concerns whether the alleged injury arose out of

Anderson’s employment. For years this Court has avoided applying “artificial labels”

by advocating a steadfast test to determine when an injury arises out of employment.

Hall v. Mason Dixon Lines, Inc., 743 S.W.2d 148 (Tenn. 1987). This struggle that

has confronted our courts was discussed in Bell v. Kelso Oil Co., 597 S.W.2d 731

(Tenn. 1980):

This Court and others over the years have attempted, with little

success, to wring more certainty and specificity from the terse words

"arising out of and in the course of employment." This has resulted in

various judicial "tests" and "doctrines," such as, the "positional

doctrine," the "peculiar hazard doctrine," the "foreseeability" test, the

"street-risk doctrine," and others.

It is difficult, perhaps impossible, to compose a formula which

will clearly define the line between accidents and injuries which arise

out of and in the course of employment to those which do not; hence,

in determining whether an accident arose out of and in the course of

the employment, each case must be decided with respect to its own

attendant circumstances and not by resort to some formula. See: 99

C.J.S. Workmen's Compensation § 209 (1958).

In this endeavor, the relation of the employment to the injury is

the essential point of inquiry. . . .

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Generally, an injury arises out of and in the course of the

employment if it has a rational causal connection to the work and

occurs while the employee is engaged in the duties of his employment;

and, any reasonable doubt as to whether an injury "arose out of the

employment" is to be resolved in favor of the employee. Great

American Indemnity Company v. Friddell, 198 Tenn. 360, 280 S.W.2d

908 (1955); Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977 (1951).

The observation of this Court in Travelers Insurance Company

v. Googe, 217 Tenn. 272, 279, 397 S.W.2d 368, 371 (1966), is

pertinent here:

"The phrase, 'in the course of,' refers to time and place,

and 'arising out of,' to cause or origin; and an injury by

accident to an employee is 'in the course of' employment

if it occurred while he was performing a duty he was

employed to do; and it is an injury 'arising out of'

employment if caused by a hazard incident to such

employment."

We have said that an injury arises out of the employment "when

there is apparent to the rational mind, upon consideration of all the

circumstances, a causal connection between the conditions under

which the work [was] required to be performed and the resulting injury."

T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585 (1951).

Bell, 597 S.W.2d at 733-34; see also Hill, 942 S.W.2d at 487; Reeser v. Yellow

Freight System, Inc., 938 S.W.2d 690, 692 (Tenn. 1997); Fink, 856 S.W.2d at 958.

The defendants contend that claims for sexual harassment are properly

brought pursuant to federal and state civil rights statutes, as well as tort suits, and do

not fall within the ambit of Tennessee’s Workers’ Compensation Law. The

defendants assert that Anderson’s alleged injury was not due to a risk inherent to her

employment or a risk that is a normal component of the employment relationship.

Because Save-A-Lot did not have policies facilitating or condoning the alleged

harassment and because the alleged incidents were not motivated by a desire to

further the business of the employer, the defendants argue that the injury did not

arise from Anderson’s employment but, instead, was personal to Kenneth Bush.

Thus, they contend that, as a matter of law, summary judgment was properly granted

to the defendants.

It is well-settled that an employee may recover workers’ compensation benefits

for emotional injuries, such as stress, arising out of employment so long as the

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mental disorder can be traced to an “identifiable, stressful, work-related event

producing a sudden mental stimulus such as fright, shock or excessive unexpected

anxiety.” Hill, 942 S.W.2d at 488; Batson v. Cigna Property & Cas. Companies, 874

S.W.2d 566, 570 (Tenn. 1994); Gatlin v. City of Knoxville, 822 S.W.2d 587, 591-92

(Tenn. 1991). This is the first occasion, however, in which this Court has considered

whether an employee may recover workers’ compensation benefits for emotional

injuries resulting from sexual harassment by a supervisor.

In prior cases, we have identified factors which aid a court in determining

whether emotional injuries arose out of employment. In Jesse v. Savings Products,

772 S.W.2d 425 (Tenn. 1989), a convenience market clerk sought to recover

workers’ compensation benefits for injuries suffered after she was raped by a

customer on the premises of the market. The employer argued that the injury was

not compensable because the injury arose from a personal motive and not an

employment-related motive. Dismissing this argument, we stated:

The motive of the assailant is only one of the circumstances to

be considered in determining whether the injury arises out of the

employment, and its weight depends on the strength of other

inferences raised by the proof. Thus, we have held that a clear animus

toward the workplace supported coverage when other factors appeared

ambiguous or neutral. See Bell v. Kelso Oil Company, 597 S.W.2d 731

(Tenn.1980) and Whaley v. Patent Button Company, 184 Tenn. 700,

202 S.W.2d 649 (Tenn.1947). We have also held that a motive purely

personal to the injured employee, inflicted by an acquaintance, can be

sufficient to preclude coverage. E.g., White v. Whiteway Pharmacy,

210 Tenn. 449, 360 S.W.2d 12 (1962). When the motives were both

personal and employment-related, we resolved the issue in favor of

coverage. DeBow v. First Investment Property, 623 S.W.2d 273, 275

(Tenn.1981).

But this is not to say that the assailant's motive is always

determinative or that an injured employee must always establish a

stranger's motivation in order to connect the assault with the

employment.

Jesse, 772 S.W.2d at 427. Acknowledging that the motive of the attacker could

never be known, we found that the “the Plaintiff's indiscriminate exposure to the

general public is one of the conditions under which her work was required to be

performed, and the actions of those persons on the premises are reasonably

considered hazards of the employment.” Id. Accordingly, we held that the plaintiff

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was entitled to workers’ compensation benefits since the injury arose out of the

plaintiff’s employment.

In Beck v. State, 779 S.W.2d 367 (Tenn. 1989), a driver’s license examiner

suffered emotional injuries after she was sexually accosted by an unknown man

during the course of her employment. Finding that the injury arose out of her

employment, we stated:

While there is no evidence that the assailant was there for any

business reason, the evidence shows that the assailant attacked

Plaintiff after she, as a duty of her employment, asked the assailant to

move his improperly parked car. Just as no one could ever know the

full intent of the assailant in Jesse, no one will ever know the full intent

of Plaintiff's assailant. But, as in Jesse, Plaintiff's indiscriminate

exposure to the general public was one of the conditions under which

her work was required to be performed, and the actions of persons on

those premises can be considered a hazard of the employment. We

therefore find a causal relationship existed between Plaintiff's

employment and the August 7, 1987 assault, and that Plaintiff suffered

a compensable accidental injury within the statutory definition of the

Tennessee Workers' Compensation Laws.

Beck, 779 S.W.2d at 371; see also Woods v. Harry B. Woods Plumbing Co., 967

S.W.2d 768 (Tenn. 1998).

Citing Brimhall v. Home Ins. Co., 694 S.W.2d 931 (Tenn. 1985), and Harman

v. Moore’s Quality Snack Foods, 815 S.W.2d 519 (Tenn. App. 1991), the defendants

contend that any injuries suffered by the plaintiff did not arise out of her employment

since they resulted from conduct that was purely personal between the plaintiff and

her supervisor. In Brimhall, the plaintiff, an auto mechanic, witnessed a co-worker

appropriating a substantial amount of hand cleaner from the plaintiff’s personal

container. The plaintiff was injured in an altercation which eventually ensued after

the co-worker refused to pay for the hand cleaner. Finding that the injury did not

arise out of the employment since the dispute was a “personal matter,” we quoted the

following proposition:

It is the general rule that "an injury arising from an assault on an

employee committed solely to gratify his personal ill-will, anger, or

hatred, or an injury received in a fight purely personal in nature with a

fellow employee, does not arise out of the employment within the

meaning of the workmen's compensation acts." 82 Am.Jur.2d

Workmen's Compensation § 330, at 128 (1976) (emphasis added).

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Brimhall, 694 S.W.2d at 932. The defendants in the instant case argue that since

Kenneth Bush’s alleged conduct was “purely personal in nature,” the plaintiff can not

recover workers’ compensation benefits. Id.

In Harman, the plaintiff employee and her husband brought a suit against her

employer pursuant to the Tennessee Human Rights Act and the Federal Civil Rights

Act. Among other contentions, the employee claimed that she was sexually harassed

by her supervisor. The employer argued that the suit should be barred because the

employee’s claim fell within the Tennessee Workers’ Compensation Law and, thus,

the exclusive remedy provision prohibits any other law suits.

The Court of Appeals in Harman first discussed the distinction between

remedies provided by the Workers’ Compensation Law and civil rights laws: workers’

compensation is intended to compensate employees for economic loss resulting from

tangible injuries suffered on-the-job, whereas civil rights laws seek to redress injuries

to an employee’s dignity and self-respect. See Harman, 815 S.W.2d at 523-27. The

Court quoted the Supreme Court of Florida’s decision in Byrd v. Richardson-

Greenshields Sec., Inc., 552 So.2d 1099 (Fla. 1989), in which the Court stated that

“as a matter of public policy, sexual harassment should not and cannot be recognized

as a ‘risk’ inherent in any work environment.” Harman, 815 S.W.2d at 527 (quoting

Richardson-Greenshields, 552 So.2d at 1104 n.7). Finding that trial courts must

decide whether a particular claim falls within the ambit of workers’ compensation or

civil rights laws, the Harman Court stated:

There are too many variables in this issue to lay down a hard and fast

mechanical formula into which trial courts may plug certain facts and

come out with a specific answer. The trial courts of this state are

going to be called upon from time to time to determine whether an

employee's claim is based upon real discrimination or arises from

employer misconduct that is a normal part of the employment

relationship.

Harman, 815 S.W.2d at 527. The defendants assert that the alleged harassing

conduct in the instant case can not be characterized as a “normal part of the

employment relationship,” and, thus, the plaintiff may not recover under the Workers’

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Compensation Law.

C. Other Jurisdictions

Although this issue has been addressed in other jurisdictions, in most of these

cases, as in Harman, the employee plaintiffs were seeking to recover under tort

theories or pursuant to civil rights legislation. The focal inquiry in such cases

addressed the employer defendants’ argument that the claims were preempted by

the exclusive remedy provisions in workers’ compensation statutes. Therefore, in

contrast to the present case, the employee plaintiffs often argued that workers’

compensation acts did not apply to their claims so that the exclusive remedy

provisions were inapplicable. See generally Annotation, 52 A.L.R. 4th 731 (1987 &

Supp. 1998); 2A Arthur Larson & Lex K. Larson, The Law of Workmen’s

Compensation § 68.34(d) (1995); Jane Byeff Korn, The Fungible Woman and Other

Myths of Sexual Harassment, 67 Tul. L. Rev. 1363 (1993); Ruth C. Vance, Workers’

Compensation and Sexual Harassment in the Workplace: A Remedy for Employees,

or a Shield for Employers?, 11 Hofstra Lab. L.J. 141 (1993); Steven G. Biddle and

Mary Jo Foster, When is Workers’ Compensation the Exclusive Remedy in Sexual

Harassment Cases?, Ariz. Atty., Dec. 1996, at 25. Although the “arising out of” prong

is uniformly prevalent in workers’ compensation statutes throughout this country,

many of these cases are not necessarily dispositive since they often involve slightly

different statutory schemes and often apply differing causation standards with regard

to the “arising out of” prong. 1

Our research indicates that relatively few courts have considered cases in

which an employee seeks workers’ compensation benefits for injuries resulting from

sexual harassment by a co-worker. In Phillips v. Arkansas State Hwy. & Transp.

Dep’t, 916 S.W.2d 128 (Ark. App. 1996), the claimant, a state employee, alleged that

her supervisor sexually harassed her, causing her to suffer from post-traumatic stress

1

For a discussion of the differing causation standards, see 1 Larson, §§ 6.00,

6.20 -.60, at 3-1, 3-4 thru -11; Bell, 597 S.W.2d at 734.

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syndrome. Ruling that the injury could not arise out of the claimant’s employment as

a matter of law, the administrative law judge and the Arkansas Workers’

Compensation Commission found that the alleged injury resulted from an “intentional

personal ac[t]” by the perpetrator and that the injury was not a risk associated with

employment since the employee could be equally exposed to such conduct outside

of her employment. Id. at 129. On appeal, the Arkansas Court of Appeals noted

that, under Arkansas law, the “arises out of” component is satisfied if the risk of an

injury is “increased by the nature or setting of the work.” Id. at 130. Reversing the

commission’s finding, the Court stated:

Whether sexual harassment is a risk to which an employee is exposed

because of the nature of the work environment is a fact that should be

decided on a case-by-case basis, and it was error for the Commission

to find that it did not have jurisdiction because sexual harassment could

never arise out of and in the course of the employment.

Id.; but see Gina Cothern, Survey, Workers’ Compensation, 19 U. Ark. Little Rock

L.J. 793, 794 (1997) (“However, because the Phillips decision was not construing the

1993 amendments [to the Arkansas workers’ compensation statute], the future of

sexual harassment claims as compensable workers’ compensation claims in

Arkansas is still unknown.”).

The New Mexico Court of Appeals also considered this issue in Cox v. Chino

Mines/Phelps Dodge, 850 P.2d 1038 (N.M. App. 1993). The claimant in Cox sought

workers’ compensation benefits for emotional injuries suffered after two co-workers

and a supervisor sexually harassed her and made vulgar comments in her presence.

The employer, which had a written policy prohibiting sexual harassment, had

previously disciplined one perpetrator of the harassment. Rejecting the claimant’s

argument that her injury arose out of her employment, the Court reasoned:

Here, the incidents involving Claimant were isolated and were

not part of the conditions of employment. . . . Claimant’s claim fails

because sexual harassment was not a regular incident of the

employment and Employer had specific policies in place prohibiting

sexual harassment. In this regard, [one of the perpetrators of the

harassment] was warned to stop his conduct or he would be

discharged. Thereafter, the sexual harassment incidents stopped.

Thus, sexual harassment was not a peculiar risk at this workplace. In

fact, Claimant admits in her testimony that she had experienced no

incidents of sexual harassment in approximately nine years of previous

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employment with Employer and that she was unaware of any other

female employee who had previously been sexually harassed at this

workplace.

By virtue of the Employer’s written policy on sexual harassment

and its action in reprimanding its employee . . . it is clear that Employer

neither authorized nor tolerated the sexual harassment incidents.

Thus, although Claimant’s injury may have been causally related to her

employment, we hold that on the facts in this case, the [Workers’

Compensation Judge] properly concluded, as a matter of law, that

Claimant did not sustain an accident arising out of her employment.

Id. at 1041. In addition, the Court responded to the claimant’s argument that the New

Mexico workers’ compensation statute should cover sexual harassment injuries as

a matter of public policy. After noting that federal and state civil rights statutes were

promulgated to provide a remedy for sexual harassment injuries, the Court stated:

We are more persuaded . . . that the concerns addressed by these

statutes are quite different from those addressed by the workers’

compensation laws and that the way to maintain public policies against

sexual harassment on the job is to pursue the common-law or statutory

remedies available to promote these policies and not to engraft those

policies on to a very different legislative scheme such as the Workers’

Compensation Act.

Id. at 1041-42; see also Comment, The Sexual Harassment Claim Quandary:

Workers’ Compensation as an Inadequate and Unavailable Remedy: Cox v. Chino

Mines/Phelps Dodge, 24 N.M. L. Rev. 565, 572 (1994) (“Another important distinction

is that sexual harassment is a behavior rather than an ‘accident.’ . . . The remedies

prescribed by the Workers’ Compensation Act, which are corrective in nature and

result in modest awards, are inadequate to help further policy which aims at

eradicating sexual harassment.”). 2

2

In this comment, the author maintains that “it is difficult to consider sexual

harassment actions incident to the work of most occupations or employment

positions. There is no logical nexus between sexual harassment and the job

description or job duties of most occupations.” Id. at 569. The commentator notes

that the Cox Court left open the possibility that sexual harassment injuries may be

compensable under the workers’ compensation statute in the event that the employer

ignored or tolerated the harassing behavior or in the event that the employer

committed negligent hiring. Id. at 571.

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In Carr v. City of Norfolk, 422 S.E.2d 417 (Va. App. 1992), the employee, a

desk officer with the Norfolk police department, filed for workers’ compensation

benefits, alleging that she suffered emotional injuries from a sexual assault by

another police officer during a shift change. The fact-finding commission concluded

that the injury did not “arise out of” her employment since the assault was “of a

personal nature” and not motivated to further the employer’s business.3 Id. at 418.

On appeal, the Virginia Court of Appeals stated that courts “on a case-by-case basis”

must determine whether a “causal connection [exists] between the claimant’s injury

and the conditions under which the employer requires the work to be performed” so

as to find that the injury arose out of employment. Id. Noting that “it is factually

difficult to separate a purely personal sexual assault from one that is only directed

against the victim as an employee or because of the employment,” the Court affirmed

the commission’s finding that the injury did not arise out of the plaintiff’s employment.

Id. at 419; see also In re Goodman-Herron v. SAIF Corp., 950 P.2d 932 (Ore. App.

1997); Ramada Inn Surfside v. Swanson, 560 So.2d 300 (Fla. App. 1990) (finding

that a sexual harassment injury arose out of and in the course of the claimant’s

employment) ; In re Brown v. Alos Micrographics Corp., 540 N.Y.S.2d 911 (N.Y. App.

Div. 1989) (affirming workers’ compensation board’s finding that employee could

3

Before resolving whether the alleged injury arose out of the claimant’s

employment, the commission first considered the following Virginia statutory

provision:

Any employee who, in the course of employment, is sexually assaulted,

. . . and promptly reports the assault to the appropriate law-

enforcement authority, where the nature of such employment

substantially increases the risk of such assault, . . . shall be deemed to

have suffered an injury arising out of the employment and shall have

a valid claim for workers’ compensation benefits.

Va. Code Ann. § 65.2-301(A) (emphasis added). The commission concluded that the

provision did not apply since the employment at issue was not of such nature as to

increase the risk of a sexual assault. Carr, 422 S.E.2d at 418.

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recover for emotional injury suffered as a result of sexual harassment); cf. City

Market, Inc. v. Industrial Claims Appeals Office, 800 P.2d 1335 (Col. App. 1990)

(workers’ compensation case in which the employer conceded that the employee’s

injury from sexual harassment arose out of her employment).

In the context of employers asserting that a civil rights and/or tort suit is barred

by a workers’ compensation exclusive remedy provision, there is a split of authority

among courts concerning whether a sexual harassment injury arose out of

employment. See generally Annotation, 52 A.L.R. 4th 731. The defendants urge us

to follow the approach taken by the Georgia Court of Appeals in Murphy v. ARA

Services, Inc., 298 S.E.2d 528 (Ga. App. 1982). In Murphy, the plaintiff, who was

employed in a cafeteria owned by the defendant, brought a tort suit in which she

sought damages emanating from sexual harassment by her supervisor. Among other

allegations, the employee claimed that her supervisor threatened to fire her unless

she consented to engaging in sexual intercourse with him. The trial court granted

summary judgment to the employer, finding that the suit was barred by Georgia’s

workers’ compensation exclusive remedy provision. In Georgia the test for whether

an injury “arises out of” employment is essentially the same as in Tennessee.4 See

id. at 530. The Georgia Court of Appeals reasoned:

[T]here is no evidence that the ongoing misconduct of the supervisor

was directed to [the employee] because of any work-related dispute or

altercation arising from the performance of her duties for [the

employer]. Conversely, the [harassing conduct] could only have been

entirely in furtherance of the supervisor’s own very personal reasons.

It would be absurd to think that any of the foregoing acts of misconduct

alleged by [the employee] were done by the supervisor either in

fulfillment of his duties or to benefit [the employer’s] business of

cafeteria food services.

Id. at 531. Concluding that the employee would not have been able to recover

workers’ compensation benefits, the Court stated:

4

It should be noted, however, that the Georgia workers’ compensation statute

contains a provision stating that the statute “shall not include injury caused by the

willful act of a third person directed against an employee for reasons personal to such

employee . . . .” Ga. Code Ann. § 34-9-1(4).

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In the case sub judice [the employee’s] employment with ARA

placed her in the working environment of the cafeteria where she was

exposed to the presence of her supervisor. However, exposure to the

person of the supervisor in his capacity as her supervisor is not

dispositive. The risk or causative danger of the injury of the type [the

employee] claims must be reasonably incidental to the character of her

employment as a cafeteria worker. We refuse to say that the risk of

verbal and physical abuse of a sexual nature alleged by [the employee]

belongs to or is any way connected with what [the employee] had to do

in fulfilling her responsibilities of employment with ARA. On the

contrary, the risk of the offensive conduct alleged by [the employee] is,

unfortunately, a hazard to which she would be equally exposed aside

from her employment.

Id. (emphasis in original).

In another Georgia Court of Appeals decision, Kennedy v. Pineland State

Bank, 439 S.E.2d 106 (Ga. App. 1993), the defendant employer argued that the

employee’s action was barred by the workers’ compensation exclusivity provision.

The suit arose after the employee, a bank employee, allegedly was accosted by a

member of the bank’s board of directors. Concluding that her claim would not be

covered by Georgia’s workers’ compensation statute, the Court stated:

[T]here is no question that [the employee] (as other members of

society) was equally exposed to the hazard of sexual assault apart from

her employment at the bank. However, [the employee’s] employment

at the bank exposed her to the presence of [the alleged perpetrator]

and to [the alleged perpetrator’s] alleged deviant sexual propensities.

Nevertheless, “[w]e refuse to say that the risk of . . . physical abuse of

a sexual nature alleged by [the employee] belongs to or is in any way

connected with what [the employee] had to do in fulfilling her

responsibilities of employment.”

Id. at 107 (quoting Murphy, 298 S.E.2d at 531); see also Simon v. Morehouse School

of Medicine, 908 F. Supp. 959, 971 (N.D. Ga. 1995).

A few other jurisdictions have reached similar conclusions. For instance, in

Dunn v. Warhol, 778 F. Supp. 242 (E.D. Pa. 1991), the plaintiff, a pathologist,

brought suit pursuant to Title VII and common law tort after she was subjected to

unwanted sexual touching and harassment by her supervisor. After considering the

employer’s argument that the employee’s suit was barred by the exclusive remedy

provision of the Pennsylvania Workmen’s Compensation Act, the federal court stated:

It does not follow . . . that sexual harassment by a supervisor who also

happens to be the victim’s employer is related to the scope of her

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employment. The court cannot conceive of an instance of sexual

harassment of an employee by an employer or others in the workplace

which properly could be characterized as employment related.

Id. at 244. Thus, the court held that the plaintiff’s suit should not be dismissed since

the workers’ compensation statute did not apply to her alleged injury. Id.; see also

Arnold v. Kimberly Quality Care Nursing, 762 F. Supp. 1182, 1184 (M.D. Pa. 1991);

Schweitzer v. Rockwell Int’l, 586 A.2d 383, 391 (Pa. Super. Ct. 1990) (“In the present

case, the alleged emotional distress arose from harassment personal in nature and

not part of the proper employer/employee relationship.”)

In Carr v. U S West Direct Co., 779 P.2d 154 (Ore. App. 1989), the plaintiff,

a sales representative, brought a tort action against her employer after she was

sexually harassed, assaulted and, ultimately, raped by her supervisor. Responding

to the employer’s argument that the injury arose out of her employment and, thus,

was compensable only under Oregon’s workers’ compensation statute, the Court

reasoned:

Here the connection to the work is weak. The source of the injury

bears little or no relationship to the employment. There is no evidence

that the assaults were provoked by anything related to the work. There

is no evidence that the nature of the job or the job environment created

or enhanced the risk of assault. The fact that the employment placed

plaintiff and [the supervisor] together is not, in itself, enough.

Id. at 156 (citations omitted); see also Richardson-Greenshields, 552 So.2d at 1104

n.7 (“We conclude that, as a matter of public policy, sexual harassment should not

and cannot be recognized as a ‘risk’ inherent in any work environment.”)5; Bennett

5

The Florida Supreme Court, however, left open the possibility that certain

sexual harassment injuries may be compensable:

Workers’ compensation addresses purely economic injury; sexual

harassment laws are concerned with a much more intangible injury to

personal rights. To the extent these injuries are separable, we believe

that they both should be, and can be, enforced separately.

Id.; see also Moniz v. Reitano Enter., Inc., 709 So.2d 150, 153 (“In the context of a

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v. Furr’s Cafeterias, Inc., 549 F. Supp. 887, 890 (D. Colo. 1982) (in a Title VII and tort

suit brought by a management trainee who allegedly was harassed and assaulted by

her supervisor, held that “[i]ndeed, it would appear to lie outside the bounds of reason

to propose that the sort of sexual assault and harassment heretofore described and

the emotional trauma alleged to have been caused thereby result from risks inherent

to the position of a ‘management trainee.’”).

On the other hand, other courts that have considered an employer’s contention

that a sexually harassed employee’s claims are subject to the workers’ compensation

exclusivity provision have found that such injuries arose out of the claimant’s

employment. For instance, in Fernandez v. Ramsey County, 495 N.W.2d 859 (Minn.

App. 1993), the plaintiff brought a tort and civil rights suit, contending that two of her

supervisors sexually harassed her. In Minnesota, the causal requirement in the

“arising out of” prong is considered:

a factor of source or contribution rather than cause in the sense of

being proximate or direct. Because of the intervening wrongful act of

third parties or some such extrinsic contribution, the employment may

not be the proximate cause. But it may be nonetheless so much

source of the event that the latter in a very real and decisive sense

arises out of the employment. . . . So it is enough that injury follows “as

a natural incident of the work . . . as a result of the exposure

occasioned by the nature of the employment.”

Id. at 861 (quoting Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn. 1992)).

Applying the law to the facts, the Minnesota Court of Appeals found:

The actions alleged by [the employee] occurred entirely while she was

at work, and the alleged perpetrators are coworkers. Under the

standard stated in Foley, the undisputed facts satisfy the [”arising out

of”] coverage factor. [The employee’s] injuries, if proved, arise from her

employment.

Fernandez, 495 N.W.2d at 861. The Court, however, remanded the case to the trial

court for a determination of whether the circumstances fall within Minnesota’s

choice between workers’ compensation and tort remedies or Title VII remedies for

sexual harassment, where they address separable injuries, then they can co-exist

and no election is necessary. Where they address the same injury, then there can

be an election of remedies.”).

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“assault exception”6 so that the injury would be non-compensable under the workers’

compensation statute.

Several other courts that have addressed workers’ compensation exclusivity

provisions have also suggested that sexual harassment injuries may be compensable

under workers’ compensation schemes. See, e.g., Byers v. Labor & Indus. Review

Comm’n, 561 N.W.2d 378 (Wis. 1997) (indicating that it is possible for a sexual

harassment injury to be covered under Wisconsin’s workers’ compensation statute

as well as under the state discrimination statute); Konstantopoulos v. Westvaco

Corp., 690 A.2d 936 (Del. 1996) (“personal dispute exception” in Delaware’s worker’s

compensation statute did not apply to injury suffered from sexual harassment by co-

workers and, thus, the exclusivity provision precludes state law claims); Green v.

Wyman-Gordon Co., 664 N.E.2d 808 (Mass. 1996); Doe v. Purity Supreme, Inc., 664

N.E.2d 815 (Mass. 1996) (finding that sexual assault arose out of the employment

and, thus, that common law claims are barred by the workers’ compensation

exclusivity provision); Dickert v. Metropolitan Life Ins. Co., 428 S.E.2d 700 (S.C.

1992) (South Carolina’s workers’ compensation exclusivity provision bars common

law suit against employer for alleged sexual harassment committed by the plaintiff’s

supervisor); Kerans v. Porter Paint Co., 575 N.E.2d 428 (Ohio 1991) (Ohio’s workers’

compensation scheme does not provide the exclusive remedy for sexual harassment

injuries); In re Tolbert v. Martin Marietta Corp., 759 P.2d 17 (Col. 1988) (finding that

the rape of the plaintiff by a coworker arose out of the employment and, thus, the

workers’ compensation scheme is the exclusive remedy)7; Knox v. Combined Ins. Co.

6

Under this exception to workers’ compensation coverage, an assault “(1)

must be intended to injure the victim because of personal reasons, and (2) must not

be directed against the employee as an employee.” Id. (construing Minn. Stat. §

176.011(16) (1990)).

7

In In re Tolbert the perpetrator did not specifically target the plaintiff as a

victim. Subsequent to In re Tolbert, the Colorado Court of Appeals has used this fact

to distinguish the case from other circumstances, thus limiting the scope of In re

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of Am., 542 A.2d 363 (Me. 1988) (it is possible for sexual harassment injuries to arise

out of employment, so that such injuries would be compensable under Maine’s

workers’ compensation act and subject to its exclusivity provision); Baker v. Wendy’s

of Montana, Inc., 687 P.2d 885 (Wy. 1984) (since employee’s alleged injury suffered

as a result of harassment by her supervisor arose out of her employment, it was

compensable under Wyoming’s worker’s compensation statute and, thus, her tort

claims were barred by the exclusive remedy provision); Downer v. Detroit Receiving

Hosp., 477 N.W.2d 146 (Mich. App. 1991) (employee’s claim against her employer

for negligently hiring an alleged sexual harasser is barred by the Michigan workers’

compensation exclusivity of remedies provision); Irvin Investors, Inc. v. Superior Ct.,

800 P.2d 979 (Ariz. App. 1990) (Arizona’s worker’s compensation exclusivity clause

applied since the employee could have recovered workers’ compensation benefits

for an injury suffered after she was sexually molested by a coworker); Crofts v.

Harrison, 772 S.W.2d 901 (Mo. App. 1989) (finding that a supervisor’s sexual assault

Tolbert. See Stamper v. Hiteshew, 797 P.2d 784, 786 (Col. App. 1990) (“Here, the

evidence strongly supports a finding that [the perpetrator’s] acts were specifically

targeted at plaintiff and not neutral in nature. Under the circumstances, her claims

could not be characterized as having arisen out of her employment. Thus, there

exists a genuine factual controversy regarding the requisite degree of job relatedness

for workmen’s compensation coverage, and the trial court erred in dismissing

plaintiff’s state claims.”); Patel v. Thomas, 793 P.2d 632, 637 (Col. App. 1990)

(“Here, unlike the circumstances in [In re Tolbert], in which the parties agreed that

there was not private motivation for the attack, the complaint implies that [the

supervisor perpetrator] specifically chose [the plaintiff] as his victim and that both he

and [another supervisor] may have mistreated her because some two years

previously [this second supervisor] had successfully initiated a private sexual

relationship with [the plaintiff]. In light of these factual circumstances, we cannot

conclude as a matter of law that [the plaintiff’s] injuries arose out of her employment

nor, therefore, that she can prove no set of facts to exempt her from the exclusivity

provisions of the Workmen’s Compensation Act.”).

-19-

on the plaintiff was an “irrational . . .’neutral,’ unprovoked assault,” and, therefore, the

injury therefrom arose out of the employment so that Missouri’s worker’s

compensation exclusivity provision applied); Juarez v. Ameritech Mobile

Communications, Inc., 957 F.2d 317, 323-24 (7th Cir. 1992) (under Illinois law, “[a]

sexually harassing co-employee is similarly a ‘risk inherent in employment.’ . . . Under

such circumstances, the harassment-prone co-employee clearly is ‘as much a part

of the victim’s work environment as a defective tool might be.’”) (internal citations

omitted); Zabkowicz v. West Bend Co., 789 F.2d 540 (7th Cir. 1986) (tort claims

against the employer for alleged injuries from sexual harassment are barred by

Wisconsin’s workers’ compensation exclusivity provision); Cremen v. Harrah’s Marina

Hotel Casino, 680 F. Supp. 150, 154 (D. N.J. 1988) (plaintiff’s injuries from alleged

sexual harassment and assault were “fully compensable under the provisions of the

New Jersey Workers’ Compensation Act” and, thus, the exclusive remedy provision

bars certain common law tort actions); Lui v. Intercontinental Hotels Corp., 634 F.

Supp. 684 (D. Haw. 1986) (plaintiff’s assault and battery claim against her employer

for sexual assault by her supervisor was barred by Hawaii’s workers’ compensation

exclusivity provision).

III. CONCLUSION

After carefully considering the rationale of these decisions and the facts of this

case, we conclude that Anderson has failed to demonstrate that her alleged injury

arose out of her employment. Although we recognize that Bush’s full intent may

never be known, see Beck, 779 S.W.2d at 371, we can make certain reasonable

inferences from Anderson’s testimony, which we construe in her favor. Byrd v. Hall,

847 S.W.2d at 210-11. On one hand, it is logical to construe Bush’s purported

activity as seeking to further a personal perverse sexual desire. It is equally logical

to interpret Bush’s conduct as being motivated by a demented animosity against

Anderson in which he seeks to control and humiliate her. Under any interpretation,

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we find that it would be unreasonable to characterize Bush’s motivation as anything

other than “purely personal in nature” and not related to furthering the business of the

employer. Brimhall, 694 S.W.2d at 932; see also City of Norfolk, 422 S.E.2d at 418-

19; Murphy, 298 S.E.2d at 531; U S West, 779 P.2d at 156. Anderson has not made

any allegation suggesting that Bush was provoked to act in the best interest of Save-

A-Lot, nor does the record support such an inference.

Furthermore, there is no indication that the nature of Save-A-Lot’s business

was such that the risk of harassment was a “reasonably considered hazar[d]” so that

it was a normal component of Anderson’s employment relationship. Jesse, 772

S.W.2d at 427; see also Beck, 779 S.W.2d at 371; Harman, 815 S.W.2d at 527.

There is no allegation that Save-A-Lot requires or encourages employees to engage

in any practice or dress in any manner that may invite sexual advances. Moreover,

there is no suggestion of an established policy or systematic behavior by the

employer in which sexual harassment is condoned. In fact, Anderson testified that

to her knowledge Bush was the only Save-A-Lot employee who engaged in

inappropriate harassing conduct. Cf. Cox, 850 P.2d at 1041.

The record strongly indicates that the alleged harassment had absolutely no

“connect[ion] with what [Anderson] had to do in fulfilling her responsibilities of

employment” with Save-A-Lot. Murphy, 298 S.E.2d at 531; see also Kennedy, 439

S.E.2d at 107. It is clear under Tennessee law that the fact that Anderson was

exposed to Bush during the course of her employment is not dispositive. See, e.g.,

Brimhall, 694 S.W.2d at 932; see also Murphy, 298 S.E.2d at 531; U S West, 779

P.2d at 156; cf. Fernandez, 495 N.W.2d at 861. The record simply does not

demonstrate that sexual harassment was an inherent risk to which Anderson was

exposed when she accepted employment with Save-A-Lot. See Ford v. Revlon, 734

P.2d 580, 591 (Ariz. 1987) (Feldman, J., concurring) (“By law, exposure to sexual

harassment is not an inherent or necessary risk of employment, even though it may

be or may have been endemic.”); Cremen, 680 F. Supp. at 158 (“In every case of

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which we are aware, courts that have grappled with the troubling issue of sexual

harassment in the workplace have refused to accept it as ‘a fact of life of industrial

employment.’”)8. To the contrary, the alleged harassment was an unanticipated risk

that was not a condition of Anderson’s employment. Accordingly, we find that

Anderson’s alleged injury is not compensable under the Tennessee W orkers’

Compensation Law.

Our holding is supported by public policy justifications. The Tennessee

Workers’ Compensation Law was enacted to “provide compensation for loss of

earning power or capacity sustained by workmen through injuries in industry.” Smith

v. Lincoln Mem. Univ., 304 S.W.2d 70, 73 (Tenn. 1957); Mathis v. J.L. Forrest &

Sons, 216 S.W.2d 967 (Tenn. 1949); Harman, 815 S.W.2d at 524; see generally

Joseph H. King, Jr., The Exclusiveness of an Employee’s Workers’ Compensation

Remedy Against His Employer, 55 Tenn. L. Rev. 405 (1988). We question whether

the drafters ever contemplated that the statute would cover injuries suffered as a

result of sexual harassment. As one commentator has noted:

The risks contemplated . . . as the purpose behind workers’

compensation are “[a]ll things that can go wrong around a modern

8

According to one commentator:

Sexual harassment is not an increased risk of employment. Women

may be exposed to sexual harassment in public, at home, or at work.

There is no increased risk of sexual harassment on the job. Sexual

harassment is typically the result of purely personal motivations and is

usually not related to a dispute at work. A causal connection between

the harassment injury and the employment is tenuous at best.

Vance, 11 Hofstra Lab. L. J. at 189-90; see also Korn, 67 Tul. L. Rev. at 1384

(“Sexual harassment, although it occurs frequently, should not, as a matter of public

policy, be viewed as a risk inherent in the workplace and, therefore, should be

outside the scope of workers’ compensation statutes.”)

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factory, mill, mine, transportation system, or construction project --

machine breaking, objects falling, explosives exploding, tractors tipping,

fingers getting caught in gears . . . .” In passing workers’ compensation

statutes, legislatures viewed these accidents “as the inevitable

accompaniment of industrial production.”

In contrast, sexual harassment is not an “inevitable

accompaniment of industrial production.” Sexual harassment is not the

equivalent of “machinery breaking, objects falling, explosives exploding,

tractors tipping” or “fingers getting caught in gears.” It does not happen

to every worker -- it happens disproportionately to women. . . . Although

sexual harassment is commonplace, we need not accept it as a risk

inherent in the workplace. It can, unlike true industrial accidents, be

eliminated.

Korn, 67 Tul. L. Rev. at 1385-86 (citing Ford, 734 P.2d at 590 (Feldman, J.,

concurring); Larson § 7.10; Note, Exception to the Exclusive Remedy Requirements

of Workers’ Compensation Statutes, 96 Harv. L. Rev. 1641, 1642 (1983)); see also

Richardson-Greenshields, 552 So.2d at 526 (“[W]e cannot find that acts constituting

sexual harassment were ever meant to fall under workers’ compensation.”); Bennett,

549 F. Supp. at 891 (“I cannot credit the suggestion that the Colorado General

Assembly intended to permit licentious behavior under the rubric of workmen’s

compensation.”); Darryll M. Halcomb Lewis, Sexual Harassment Under Workers’

Compensation Law, 44 Labor L. J. 297, 305-06 (1993) (“Sexual harassment claims

simply have no place in a workers’ compensation court. As was stated in Byrd v.

Richardson, it was never intended that these types of claims be under the province

of workers’ compensation courts.”); Vance, 11 Hofstra Labor L. J. at 158 (“It is less

clear that providing workers’ compensation coverage for sexual harassment on the

job fulfills the goal of redressing industrial injuries. Indeed, one might ask whether

sexual harassment is an industrial injury. Sexual harassment, an injury occasioned

by intentional actions in the workplace, is not a normal risk of employment.”). From

a practical standpoint, since sexual harassment victims ordinarily do not suffer

tangible economic loss, calculating damages under the workers’ compensation

scheme may often be cumbersome and arbitrary. See Kerans, 575 N.E.2d at 489

(“[A]side from expenses which they may incur for psychiatric care, victims of sexual

harassment generally do not suffer economic loss. Their injuries are much less

tangible and often are not susceptible to a neat compensatory formula. Thus, . . .

most victims would not obtain appropriate or sufficient relief.”).

-23-

In fact, the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101 et

seq. (1998 Repl.) (“THRA”), was enacted to provide a remedy for the type of injuries

that the plaintiff alleges. 9 The remedies provision of the THRA, as well as its federal

counterpart, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., is

designed to fully compensate victims of sexual harassment in the workplace.10 See

Tenn. Code Ann. § 4-21-306. Moreover, it is conceivable that a contrary ruling would

thwart the intent of the framers of the THRA to provide sexual harassment victims

with a full recovery, since employer defendants would argue that THRA suits brought

by employee plaintiffs are barred by the Tennessee workers’ compensation

exclusivity of remedies provision. According to one commentator:

Sexual harassment was probably never contemplated by the original

authors of workers’ compensation systems because women did not

have a strong presence in the workplace. Furthermore, public policy

against sexual discrimination had not been formulated and translated

into statutory law. Therefore, sexual harassment is completely outside

the contemplation of the workers’ compensation scheme, and

employers should not be allowed to use the exclusive remedy provision

as a shield to avoid liability for permitting sexual harassment to occur

in the workplace.

Vance, 11 Hofstra Lab. L. J. at 192; see also Deborah A. Ballam, The Workers’

9

It is presumed that the General Assembly was aware of the state of the law

at the time that it passes legislation. Fletcher v. State, 951 S.W.2d 378, 382 (Tenn.

1997).

10

As noted in this opinion, several courts have painstakingly attempted to

create a bifurcated system in which a sexual harassment victim may recover either

workers’ compensation benefits or human rights act damages depending upon the

nature of the injury. See, e.g., Harman, 815 S.W.2d at 527; Richardson-

Greenshields, 552 So.2d at 1103-04. We find such a distinction to be illusory in the

context of our human rights act. The remedies provision of the THRA is designed to

provide a sexual harassment victim with a full recovery, which includes damages for

humiliation and embarrassment as well as damages for economic loss. See Tenn.

Code Ann. § 4-21-306(a)(7)&(8). Thus, there are no damages that a sexual

harassment victim could recover under the workers’ compensation scheme that he

or she could not recover under the THRA.

-24-

Compensation Exclusivity Doctrine: A Threat to Workers’ Rights Under State

Employment Discrimination Statutes, 27 Am. Bus. L. J. 95 (1989). Accordingly, the

THRA is the appropriate avenue of relief for plaintiffs who suffer injuries as a result

of sexual harassment. See Lewis, 44 Labor L. J. at 306 (“Except for the convenience

of employers and the flimsy benefit the victims of sexual harassment might achieve

by quicker, but much smaller awards, it is difficult to conjure a reason for workers’

compensation courts handling sexual-harassment cases.”).

The judgment of the trial court granting summary judgment to the defendants

is hereby affirmed. Costs of this appeal are taxed to the plaintiff.

_____________________________________

Frank F. Drowota, III,

Justice

CONCUR:

Anderson, C.J.

Birch, Barker, J.J.

Hayes, S.J.

Holder, J., not participating

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