The survivor of sexual violence in the federal workplace faces peculiar obstacles to remedial justice in court.
When any plaintiff brings a tort claim against the United States for intentional harm by a federal employee, the Federal Tort Claims Act (“FTCA”) expressly excludes liability for “[a]ny claim arising out of assault [or] battery.”1 That exception, however, is itself subject to exception and is of doubtful continuing legitimacy. For example, the United States remains liable under some circumstances for negligent failure to prevent an assault or battery. As another example, the FTCA expressly permits claims for assault or battery committed by a federal law enforcement officer. Moreover, the assault-and-battery exception has been partially and now should be wholly repealed. But even if the exception can be avoided for others, the federal employee still is left without tort relief.
First, most federal courts have held that employment discrimination statutes provide the exclusive remedy for sexual misconduct occurring in the workplace, despite the absence of any support for that result in the text of the statutes. Second, the United States insists that the federal workers’ compensation statute is the exclusive remedy, even for workplace injuries imposed by intentional coworker misconduct. Third, the young women and men of the armed services who survive sexual assault are locked out of the courthouse by the judicially implied Feres doctrine, which holds that a service member injured incident to service is barred from bringing an action against the United States under the FTCA.
While those who work for the federal government, like any private sector worker, are at risk for an accidental injury on the job, the employee who is sexually attacked by a coworker should not be treated as the incidental victim of a work-related injury and subjected to routine compensation benefits that are not designed for the unique harm caused by sexual violence. To hold the federal government fully accountable for sexual assault, Congress should ensure that federal employees—both civilian and military—when sexually assaulted by a federal employee may seek appropriate judicial relief in the form of damages under the traditional law of torts.
The full text of this Article is available to download as a PDF.