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On June 4, 2023, L.D. 53 (An Act to Ensure Accountability for Workplace Sexual Harassment and Sexual Assault by Removing Certain Intentional Torts from Workers’ Compensation Exemptions) was enacted into law. This amendment to 39-A M.R.S.A. §104 provides that, notwithstanding exclusivity of the workers’ compensation remedy, an employee, supervisor, or officer or director of an employer may be individually liable for sexual harassment, sexual assault or an intentional tort related to sexual harassment or sexual assault. The law provides that workers’ compensation remains the exclusive remedy for intentional torts with respect to an employer itself, including intentional torts related to sexual harassment or assault but now co-workers may be individually liable for such torts. The provision also expressly states that it does not prohibit or limit an action alleging employment discrimination pursuant to the Maine Human Rights Act or Title VII of the federal Civil Rights Act of 1964, which seems obvious since Maine is a jurisdiction that has always allowed actions under the Maine Human Rights Act for sexual harassment or assault that arises out of the workplace, with recovery for non-pecuniary damages available to a successful claimant.
In practical terms, it is unclear what damages might be available to a claimant who successfully alleges sexual harassment or sexual assault from a co-worker, as presumably, co-workers would not have financial resources to pay any damages.