On June 10, 2021, the Louisiana State Legislature passed House Bill (HB) No. 379, a measure that provides for civil liability for injuries caused to individuals who have experienced sexual assault in the workplace, as defined by criminal statutes. Governor John Bel Edwards signed HB 379 into law on June 18, 2021, and it took effect on August 1, 2021, as Act No. 411.
Act No. 411
Act No. 411—now La. Civ. Code art. 2315.11—provides that “[i]n addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by an act or acts of sexual assault in the workplace.”
General damages include nonmonetary damages such as pain and suffering (past and future), mental injury, loss of enjoyment, and loss of companionship. These damages include compensation for categories of injuries for which exact dollar values cannot be calculated. They are subjective and can vary from case to case. “Special damages” are economic damages designed to compensate an injured party for specific monetary losses and out-of-pocket expenses incurred, including medical expenses and lost wages.
In Louisiana, “exemplary damages” is the term used instead of punitive damages, and it describes damages that are intended to punish past conduct and deter future conduct. Historically, Louisiana has allowed exemplary damages only sparingly and then only by statute.
Act No. 411 provides, “The provisions of this Article shall be applicable only to the perpetrator of the sexual assault.” (Emphasis added.) This language would appear, at least on its face, to preclude vicarious liability to the employers of such perpetrators.
The act also provides for costs and attorneys’ fees to be awarded to a defendant for a “frivolous or fraudulent” action for damages under the statute.
Three-Year Limitations Period
Act No. 411 also extends the “liberative prescriptive period”—Louisiana’s term for a statute of limitations—to the three-year period provided for in La. Civ. Code article 3496.2. Pursuant to La. Civ. Code art. 3496.2, “[t]his prescription commences to run from the day the injury or damage is sustained or the day the victim is notified of the identity of the offender by law enforcement or a judicial agency, whichever is later.” In Louisiana, tort claims must be brought within one year of an injury, and a sexual harassment claim must be brought within 18 months. So, the Louisiana State Legislature has provided an unusually long limitations period for a workplace sexual assault claim.
Definition of “Sexual Assault”
Lastly, the act incorporates La. R.S. 46:2184’s definition of “sexual assault,” defined as “any nonconsensual sexual contact including but not limited to any act provided in R.S. 15:541(24) or obscenity (R.S. 14:106).” La. R.S. 15:541(24) defines “sex offense” to include any offense prosecuted under a litany of enumerated statutes, including, but not limited to trafficking, solicitation, and sexual battery. In addition, La. R.S. 14:106 defines “obscenity” as a number of intentional acts including, but not limited to the sale of obscene material, solicitation of a person under the age of 17, and the advertisement of violent material.
Although La. R.S 46:2184 uses the term “sexual contact,” the term is not defined in that statute. Act No. 411specifically uses the term “sexual assault” and incorporates criminal definitions of sexual assault and obscenity from the criminal statutes. Consequently, it does not appear that the legislature intended to create liability for unintentional or casual touching.
La. Civil Code art. 2315.11, is fairly straightforward. Its primary objective is to extend the prescriptive period to three years and allow for punitive damages related to sexual assault that occurs in the workplace. The new law applies only to perpetrators of crimes of sexual assault, so it does not appear to create new liability for employers. The definition of “sexual assault” (made by reference to criminal statutes) also includes only intentional conduct, which generally precludes the application of vicarious liability unless such intentional conduct was within the course and scope of that individual’s employment. However, to the extent that allegations of sexual assault are made against a company’s employees, companies may want to consider the need to train employees, especially supervisors, about the potential exposure created by this new law.
Under current Louisiana law, employers face risk for sexual harassment, which could potentially include nonconsensual touching, and direct and vicarious liability; it is unclear if this new law is intended to impact employer exposure for sexual misconduct that is now litigated as a sexual harassment claim.