Hate Crimes and CA Workers Comp

By David J. Chun, Shareholder, Stander Reubens Thomas Kinsey (SRTK)

Hate crimes in California have been on the rise. A couple of years ago, more than half of such crimes were based on race, ethnicity or national origin. The next most common incidents involved sexual orientation. 

The FBI has defined hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity.” Other definitions, including that of the Merriam-Webster dictionary, add creed as an additional category, which broadens the definition of hate crime. California Penal Code Section 422.55(a) also adds crimes committed due to a bias against a victim’s nationality or association with a person or group with one or more actual or perceived other characteristics specified above.

In reviewing whether a hate crime leading to injury or death entitles a victim or their family to receive workers’ compensation benefits in California, one needs to determine if the hate crime was integral to the work itself or if the work place was merely a stage for the crime. It should be a classic AOE/COE analysis but, with the steady rise in hate crimes and variations of such crimes (e.g. domestic terrorism and school shootings) in recent years, I predict there will be an increase in pressure on employers and insurers to more readily accept workers’ compensation claims stemming from such crimes. With the advent and growing support for the “Me Too” movement, this can have an especially poignant impact on hate crimes involving gender, i.e. sexual harassment.

There is a line of cases in California workers’ compensation law dealing with the work place being just a stage for an attack by an individual against an employee. Whether it is an employee against another employee or a non-employee against an employee, if the attack was essentially personal in nature and work was only a backdrop to the attack, case law holds that the resulting injury or death is not compensable. However, the line can be blurred when an attack is motivated by both personal and professional reasons.

Imagine an assailant-employee being jealous of a victim-employee due to a perceived notion that the victim is favored by management. Also imagine that the victim and assailant were good friends, but the friendship ended when the victim started dating the assailant’s ex-girlfriend. Then during a sales meeting, without apparent provocation, the assailant punches the victim in the face, resulting in injury. Compensable? What if the two were very mildly disagreeing about a work-related issue shortly before the attack? Arguments can be made for either position under both scenarios, but you can see that even a single fact can skew the analysis one way or the other.

A similar analysis needs to be done to determine whether a hate crime committed in the work place is compensable. Was it a non-employee against an employee or an employee against an employee? In either scenario, what was the apparent motivation of the attack? Did it have anything to do with the work itself? In other words, it may have been in the course of employment (i.e. during work hours), but did it arise out of the employment? As mentioned in the example above, when it is an employee attacking another employee, the analysis may get tricky since professional motivation could be intertwined with personal motivation. 

Even in a non-employee attacking an employee situation, the answer may not be so clear. Consider an attack on a bank employee who happens to be transgender. During a transaction in which the assailant is withdrawing some money, the assailant perceives the bank employee to be gay. Without apparent provocation by the bank employee, the assailant takes out a gun and shoots the employee in the face while yelling a homophobic slur. Compensable? What if the victim was the assailant’s neighbor, and the assailant perceived well before the transaction that the victim was gay? Would the analysis and end result be different? Add a few other facts, and your head will start spinning. 

Social and political pressure can also play a role in how a hate crime or a certain type of hate crime is treated in the California workers’ compensation system. Take for example, the relatively recent San Bernardino shooting. Although the vast majority of the workers’ compensation claims filed after the shooting were accepted as compensable and the core issue has become medical treatment, twist the facts around a bit and the issue of compensability could have been the main one. If that were the case, the fact that the underlying violence was an act of hate and terror, likely would have swayed the threshold issue of compensability, either within the individual cases or subsequently through legislation affecting a broader spectrum of cases. As it is, regarding the medical treatment issues that have arisen for the claimants, there has been legislation proposing to streamline the process.

Beyond workers’ compensation, employers in California also need to worry about the Ralph Civil Rights Act imposing additional liability. The Ralph Civil Rights Act protects individuals from hate crimes by supplementing remedies available through the workers’ compensation system and Fair Employment and Housing Act (“FEHA”). It allows hate crime victims to go after assailants, and in the case of workplace violence the employer as well, without exhausting all other remedies. In Ventura v. ABM Industries Inc. (12/20/12, No. B231817), the Court allowed the employee-plaintiff to recover damages against her employer for sexual harassment committed by the employee’s supervisor. Plaintiff Sylvia Ventura, a janitor for ABM Industries Inc. (“ABM”), alleged a history of harassment as well as threats and physical violence, including choking and biting, by her supervisor. Ventura claimed that ABM approved and ratified the supervisor’s conduct by not disciplining him, even after she produced voicemail recordings of harassing phone calls. Ventura argued that her supervisor’s actions were appropriately addressed by the “hate crime” statute because she was subjected to threats of and actual violence in the workplace based on her gender. The jury agreed with Ventura and awarded her $100,000 in compensatory damages and $550,000 in attorney fees.  In addition, Ventura was granted a $25,000 civil penalty, a remedy available to successful plaintiffs under the Ralph Act. 

Although I could not find any evidence that Ventura also filed a workers’ compensation claim, I am willing to guess that she did. In this case, the hate crime resulted in a payout in multiple ways. I suspect that the gaining momentum of the “Me Too” movement will parallel an increase in multiple pronged sexual harassment hate crime claims.

While compensability should boil down to a traditional AOE/COE analysis, the current climate of our Golden State, where a dichotomy of hate crimes being on the rise while intolerance and socio-political pressure against said crimes are also on the rise, employers and carriers likely will be accepting and paying on hate crime claims more readily than in the past. Moreover, as the Ventura case illustrates, California employers also need to be wary of liability beyond the workers’ compensation system.