Workers Compensation Can be a Complex Issue

Gaithersburg, MDWhat is an injury, anyway? A broken leg? Sure. Wrenched back? Of course. The loss of a limb? That goes without saying. But what about emotional injuries? Workers compensation law is there to protect workers from injuries while on the job, and those injuries need not always be physical. Workers compensation is a requirement of employers, to ensure that employees who are injured on the job are properly compensated. And in today's world, those injuries are becoming increasingly complex.

Take the case of a hotel assistant general manager who claimed that she was subjected to sexual harassment and retaliation in the workplace. Is this just a harassment case? Or could emotional injuries be claimed? Were an employer to fail to provide a safe work place environment for the worker—and an injury ensued—then a workers compensation claim can apply.

But what of sexual harassment? Is such conduct any less of a threat to a woman than, say a creaky machine or a slippery floor? And when an employer allows any employee to frequent the workplace that generates alleged harassment, one might argue that the workplace is not safe for those at the receiving end of such conduct.

In the case of Kathleen Gasper, the assistant manager who was fired in an apparent act of retaliation for her claims of harassment, a jury returned a verdict disfavoring Gasper. She appealed, and the appeals court ruled that Gasper has another chance to prove her case against the hotel and the individuals at the root of the alleged harassment.

The appeals court found that one of her complaints was not preempted by the Maryland Workers' Compensation Act, which allowed for her appeal to go ahead.

Here's the story: Gasper worked as the assistant general manager at the Courtyard by Marriott Gaithersburg-Lakeforest, a facility owned by Ruffin Hotel Corp. Gasper worked at the hotel from November 2003 to March 2005, and in the middle of her tenure a new hire came on board. Imran Ahmed was brought in as manager and Gasper's supervisor.

Sometime during this period James Bridges, the front desk manager, allegedly harassed Gasper. Gasper claimed that Bridges pinned her against the wall and kissed her. However her complaint to Ahmed fell on deaf ears, and when she backed up her assertion in writing, Ahmed discouraged her from filing a formal report and threatened to fire her.

Some time later Ahmed went out of town on business, and left Gasper and Bridges in charge as equals. By telephone, Gasper suggested to Ahmed that she did not feel safe and felt threatened by Bridges. After being told by Ahmed to leave the hotel, Gasper filed a criminal complaint of sexual assault against Bridges and sent a letter to the CEO of Ruffin Hotels detailing the conduct, as well Ahmed's response.

Bridges was fired and Gasper returned to work, but her relationship with Ahmed was strained. She claims Ahmed was hostile to her and began to exclude her from meetings. When she complained to Ahmed's immediate superior, Ahmed fired her the next day.

The jury initially found in favor of Ruffin on Gasper's claims of sexual harassment and retaliation. Gasper appealed, arguing in part that the Circuit Court erred by excluding evidence showing that Ahmed had been previously terminated due to complaints of harassment and retaliation.

The court of appeals determined that while the decision to exclude evidence was correct, Gasper's complaints that the jury's instruction was incorrect and that her claims of negligent hiring and retention of Ahmed, had merit. The court found that the latter complaint was not preempted by the Maryland Worker's Compensation Act and thus found no reason to abandon general tort principles in favor of preemption.

So when is an incident harassment and when is it considered injurious? Or both? A question best left with a workers compensation attorney, who knows the full breadth of workers compensation law. Workers comp is more than just a catch phrase; it's insurance protecting the health, well-being and safety of the employee. And the employer needs to have it, or face the consequences.