Sexual assault at work — an act of unwanted sexual touching, forced sexual contact, or rape — is the most serious end of the harassment spectrum. It gives rise to a civil case distinct from and in addition to any criminal proceeding. The two tracks operate independently: the civil case does not require a criminal conviction, and the survivor controls the civil case.
For workplace sexual assault in New York or New Jersey, several overlapping frameworks apply.
The employment discrimination frameworks
A single act of sexual assault is generally sufficient to establish a hostile work environment claim under Title VII. The severity of the conduct compensates for the absence of pervasiveness. The Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), and Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), framed the standard as “severe or pervasive” — an act of sexual assault is severe by definition.
Under the New York State Human Rights Law, N.Y. Exec. Law § 296, and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107, the standard is broader still — sexual assault is well beyond the “petty slight or trivial inconvenience” line, and the 2019 elimination of the “severe or pervasive” threshold for NYSHRL claims makes the analysis straightforward.
The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., similarly treats a single act of sexual assault as adequate to support a hostile-work-environment claim under Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993).
Employer liability follows the ordinary sexual-harassment framework. Under Title VII, if the assailant is a supervisor and the assault results in a tangible employment action, the employer is strictly liable under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). If the assailant is a supervisor but no tangible action follows, the employer has a potential Faragher/Ellerth defense. If the assailant is a coworker or non-employee, the employer is liable when it knew or should have known and failed to take prompt corrective action. Under the NYCHRL, supervisor liability is strict without any Faragher/Ellerth defense.
Common-law tort claims
Sexual assault gives rise to independent common-law tort claims, which are typically pleaded alongside the statutory discrimination claims.
Battery. The intentional harmful or offensive contact with another person, without consent. Every act of unwanted sexual touching is a battery. Damages include the plaintiff’s physical and emotional injuries.
Assault. The intentional creation of a reasonable apprehension of imminent harmful or offensive contact. The moment before the touching — cornering, blocking, reaching — is an assault, whether or not the touching occurs.
Intentional infliction of emotional distress. Extreme and outrageous conduct that causes severe emotional distress. Sexual assault meets the “extreme and outrageous” threshold.
False imprisonment. Where the assailant physically confined the plaintiff — in an office, a room, a vehicle — the confinement is separately actionable.
Negligent hiring, retention, and supervision. These are claims against the employer, not the assailant. When the employer hired the assailant despite information that would have put a reasonable employer on notice of the risk, or retained him after receiving prior complaints, or failed to supervise him despite known concerns, the negligence claim is often the strongest against the corporate defendant. The tort is well-established in both New York and New Jersey.
The NYC Gender Motivated Violence Act
New York City’s Victims of Gender-Motivated Violence Protection Law — commonly called the Gender Motivated Violence Act — creates a private civil right of action for gender-motivated acts of violence. N.Y.C. Admin. Code §§ 10-1101 et seq.
The statute defines a “crime of violence motivated by gender” as “a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” § 10-1103. The plaintiff must show that the act was a crime of violence (a felony act that would rise to a violent-crime definition under state or federal law) and that gender animus was a substantial motivating factor.
The standard limitations period under § 10-1105 is seven years from the act, extended to nine years where the plaintiff was unable to commence an action due to injury, disability, or infancy.
A revival window is currently open. Local Law 2026/050 — enacted January 29, 2026, when the New York City Council overrode Mayor Adams’s veto of Bill 1297-A — opened an eighteen-month civil lookback window running from January 29, 2026 through July 29, 2027 for GMVA claims arising from acts occurring before January 9, 2022, including acts occurring before the GMVA’s original 2000 enactment. The 2026 amendment also permits survivors whose claims were dismissed under the earlier lookback window (March 1, 2023 to March 1, 2025, opened by Local Law 193 of 2022) to amend or refile under the current provision.
The statute expressly authorizes recovery of “compensatory and punitive damages, injunctive and declaratory relief, attorneys’ fees and costs, and such other relief as a court may deem appropriate.” § 10-1104. It applies to acts committed within New York City. It reaches individual assailants and, in appropriate circumstances, third parties whose conduct is sufficiently connected to the act — including employers under a negligent-hiring or aiding-and-abetting theory in some cases.
The GMVA does not preempt other claims. A workplace sexual assault case in New York City typically pleads GMVA claims together with Title VII, NYSHRL, NYCHRL, and common-law tort claims.
The framework in New Jersey
New Jersey does not have a direct equivalent to the NYC GMVA, but the combination of the NJLAD, common-law tort claims, and the New Jersey Crime Victim’s Bill of Rights, N.J.S.A. 52:4B-1 et seq., produces a comparable civil-side framework. The NJLAD authorizes compensatory and punitive damages, attorneys’ fees, and equitable relief. Common-law tort claims are pleaded alongside.
Nondisclosure and nondisparagement — the practical framework
Since 2018, and with substantial amendments since, both New York and New Jersey have limited employers’ ability to require confidentiality in sexual-harassment and sexual-assault settlements.
New York. N.Y. C.P.L.R. § 5003-b prohibits any settlement, agreement, or other resolution of a claim involving a factual allegation of discrimination — including sexual harassment and sexual assault — from including a term preventing the claimant from disclosing the underlying facts, unless the term is the claimant’s preference, memorialized in a specified way with a 21-day consideration period and 7-day revocation period. Section 5-336 of the General Obligations Law imposes a parallel restriction on pre-litigation settlements.
New Jersey. N.J.S.A. 10:5-12.8 prohibits any provision in an employment contract or settlement agreement that has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment. New Jersey courts have interpreted the statute broadly.
Federal. The Speak Out Act, 42 U.S.C. § 19401 et seq. (2022), voids pre-dispute nondisclosure and non-disparagement clauses in cases of sexual assault or sexual harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 9 U.S.C. § 402, gives the plaintiff the choice, after the dispute arises, whether to invoke or waive any pre-dispute arbitration clause.
The practical effect: forced arbitration and forced confidentiality in workplace sexual assault cases have been substantially limited. Survivors have the option to litigate in court and to speak publicly about the facts, subject to the specific statutory conditions.
The criminal proceeding is separate
A criminal case and a civil case operate independently. The criminal case is brought by the prosecutor and requires proof beyond a reasonable doubt. The civil case is brought by the survivor and requires proof by a preponderance of the evidence. A survivor may:
- Pursue a criminal case only.
- Pursue a civil case only.
- Pursue both in parallel.
- Decline to participate in a criminal case and pursue only a civil case.
Cooperation with a criminal case does not require the survivor to give up control over the civil case. A civil case can proceed while a criminal case is pending, though the timing is often coordinated with counsel.
What to do
- Consider medical care and evidence preservation first. A sexual assault forensic examination — a “rape kit” — can be done at a hospital regardless of whether a police report has been made. Preservation of physical evidence is time-sensitive.
- Document contemporaneously. As soon as it is possible to do so, write down what happened, in your own words, with times and locations. Keep the writing outside the employer’s systems.
- Preserve digital records. Texts, DMs, emails, calendar entries, badge-in and badge-out records, security-camera footage requests — all can be relevant. Screenshot; forward to a personal account.
- Consider counsel before the internal report. For sexual assault, in particular, the internal HR process is often unequipped and can create records that complicate the civil case. Speaking with counsel first is generally worthwhile.
- Do not sign a severance or release. Any settlement offered at or near the time of a sexual assault is likely to substantially undervalue the claim. Take it home. Consult before signing.
- Know that the confidentiality provisions may not be enforceable. New York, New Jersey, and federal law limit nondisclosure and nondisparagement provisions in sexual-assault settlements. That is worth understanding before signing.
If you were sexually assaulted at work in New York or New Jersey, contact Fingerhut Law for a confidential consultation.
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