It seems as if every time we turn on the news there is a new allegation of sexual abuse and assaults committed in the context of an employment relationship: teachers, day care workers, Boy Scout leaders, college football coaches, and even police officers. In other cases, the alleged victim is merely a woman who purchased a television and subsequently alleges she was raped by the company delivery man. In still other cases, the alleged victim works with the accused perpetrator. When the alleged victim and perpetrator are brought together as a result of an employment relationship, the employer, the proverbial “deep pocket,” is generally the one who is sued.
No matter the relationship between the alleged victim and alleged perpetrator, most often related civil lawsuits are based upon alleged negligence by the organization which brought them into contact. Cases arising from sexual misconduct are generally based upon theories of negligent hiring and negligent retention/supervision.1 The ultimate question in such cases is “whether it is reasonable for an employer to permit an employee to perform his job in light of information about the employee which employer knew or should have known.2” Negligent employment cases are successful when plaintiff’s counsel is able to prove that the employer failed to properly screen an applicant or had lax supervision that the alleged perpetrator may have exploited to commit misconduct.
We all have an interest in preventing sexual abuse and assault. Not only are such crimes horrific for the victims, they can mean years of costly litigation and, in cases where abuse is alleged to be widespread, major public relations problems for an organization. Therefore, it is critical that employers understand what makes them vulnerable to claims and how best to prevent situations where allegations of misconduct may arise.
Under the law, an employer is liable for an employee’s sexual misconduct where the employer is responsible for bringing the alleged victim into contact with its employee when the employer knows or should have known of the employee’s predisposition to commit wrong under circumstances that create opportunity or enticement to wrong.3 In every instance where an employee will have more than incidental contact with other employees and the general public, an employer has a duty to independently investigate applicants before hiring. 4 Depending on the position, the investigation goes beyond merely conducting a personal interview, receiving an application, and making personal observation of the applicant.5
The process of protecting an organization from allegations begins long before an employee is even hired. It is critical, particularly in cases of employees who will have contact with vulnerable populations such as children or the disabled, that a potential employer conduct a thorough background screening of each prospective employee. This applies to applicants for all positions from a stock clerk to the CEO because potential sexual predators exist in every walk of life. A thorough background check includes more than just checking all references provided, though all references should be checked, bearing in mind that those people were hand-picked to provide glowing, positive information about the applicant.
Most importantly, the potential employer must speak with all of the applicant’s previous employers to determine if the applicant has any history of misconduct that may disqualify him or her from employment with the new organization. Failing to check even a single prior job is evidence a plaintiff’s attorney can use to show that an employer breached the standard of care and therefore was negligent in hiring an employee. Most previous employers will not share specific information about the applicant’s history without authorization from the employee due to privacy and confidentiality laws. Prospective employers may consider requiring applicants to sign authorizations that allow representatives to speak with each prior employer when the employee is likely to have contact with the general public as part of the new job.
Even without an authorization, a previous employer is likely to confirm the applicant’s dates of employment and will usually answer the direct question, “Is the person eligible for rehire with your organization?” In the event an applicant is not eligible for rehire, or if the stated dates of employment are different from those provided by the applicant, the prospective employer must follow-up with the applicant. These are red flags that plaintiffs’ attorneys live for; at the very least, the employee was a liar and should not have been hired, at worst, the company willfully failed to learn that he had a history of alleged misconduct. Most often, the reason an applicant is not re-hirable is relatively innocuous, but sometimes there is a pattern of conduct that is problematic, such as problems getting along with co-workers or a prior allegation of sexual harassment. Depending on the nature of the new position, companies may wish to take the extra step of requiring the applicant to sign an authorization allowing access his previous employer’s personnel file to evaluate the situation. Likewise, prospective employers should not be afraid to verify other information contained in the application such as education and training. Overstating qualifications can also be a “red flag” that plaintiffs’ attorney seek out, particularly when there is no follow-up by the employer.
Whenever possible, employers should conduct an additional criminal background check on all potential hires, particularly if the applicant has a history of unexplained relocations between cities or an unsteady job history. Until proven otherwise, companies should assume the worst and not rely upon the employee’s explanation when this information is easily verifiable. Many private investigators will perform background checks in bulk for companies and it often involves little more than entering an applicant’s name and Social Security Number into a computer. Every dollar spent before an employee is hired could result in saving your organization millions of dollars later on in the event the employee is the subject of a sexual misconduct allegation and the plaintiff can prove that simple things were missed or disregarded during the hiring process.
Under the law, prior allegations of misconduct need not be sexual in nature in order to create a foreseeable risk that sexual misconduct will occur.6 Any indication of past violent behavior, drug use, or mental illness could lead a jury to conclude that an employer created a zone of foreseeable risk to the alleged sexual assault victim, in the event an allegation turns into litigation.
Any action a prospective employer takes during the hiring process helps establish that the organization met, and preferably exceeded, the “reasonably prudent organization” standard, which is the legal litmus test applied in litigation.7 No matter what steps are taken, employers must be sure to document every single contact with an applicant, his previous employers, schools, and references, so that even years later, the exceptional due diligence can be shown.
Retaining and Adequately Supervising Employees
A case of negligent retention and supervision of an employee arises when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicate an unfitness for duty but the employer fails to take further action, such as investigation, discharge, or reassignment.8 Negligent hiring can give rise to a negligent retention/supervision claim even if the employee commits no other acts of misconduct between the time he is hired and the time the sexual misconduct allegation is made when the employer fails to take adequate precautions to adequately supervise or limit an employee’s duties. Negligent retention/supervision claims formed the basis of the overwhelming majority of the child sexual abuse lawsuits against the Catholic dioceses in the United States; plaintiffs’ attorneys argued that, despite a history of sexual abuse allegations against the particular priests, Catholic bishops routinely reassigned them to new parishes and continued to give them unfettered access to children without warning parents and other parish staff, or otherwise limiting their duties. In many cases, the accused priests were sent to work in rural parishes where they worked alone and had almost no regular interaction with their supposed supervisors.
It goes without saying that employees should be properly supervised at work. However, adequate supervision is a particularly crucial issue when an employer has some indication of an employee’s unfitness- which might include involvement in the criminal justice system, mental health issues, or drug use- that may lead to danger. Plaintiffs’ attorneys look for indications of lax supervision as evidence of employer negligence. For example, in the case of alleged rape of an incapacitated plaintiff during a CT Scan, the plaintiff’s attorney may point to a hospital practice of allowing a CT Scan Tech to work alone on overnights, supervised only by the hospital’s nursing supervisor who only entered the CT Scan room once every 2-3 weeks, as evidence of negligent supervision. Sexual misconduct does not occur in front of an audience, so adequate supervision will minimize or otherwise avoid situations where an employee is left alone with anyone who could be seen as a potential victim. As another example, some schools require teachers who tutor students after school to have a minimum of two students in the classroom at all times or require multiple teachers to use the same room in order to ensure that no one is unmonitored.
Where appropriate, employers should consider installing surveillance cameras in areas where employees congregate. In many cases of employee-on-employee misconduct, the cameras yield indisputable proof that an event did or did not occur, or, at the very least, may provide evidence to corroborate one employee’s version of events. In either event, such evidence is usually helpful in the event of later lawsuits or EEOC complaints and is far more convincing than an attorney’s argument about what the facts suggest might have happened.
Immediately upon receipt of an allegation of sexual misconduct, employers should err on the side of caution and remove the alleged perpetrator from all contact with the general public as a company representative and, depending on the allegation, all contact with other employees. Nowhere is the axiom “better safe than sorry” more true for everyone involved than in a case of alleged sexual abuse or assault. In most cases, the employer is generally within his rights to terminate an employee without further action if it so wishes.9 In some cases, an organization may instead choose to suspend an employee pending investigation of a claim. In this event, it is advisable to bring in a third party investigator with experience in this area, rather than have another company employee conduct the investigation. This leads to more dependable results that are not as easily subject to attack in later litigation, particularly if the employee is retained and additional allegations arise later on.
In the event that an employer chooses to retain an employee who has been accused and/or investigated for sexual misconduct, it should do so only after careful assessment of the potential risks. Consider the advice of those with more experience in these issues very carefully. Learn from the example of Penn State University, whose leaders first learned in 1998 that Jerry Sandusky was the subject of a police investigation, more than a decade before another boy says he was sexually abused: do not assume that the failure to make an arrest means the police have concluded the alleged incident did not occur and that the allegation is false; it generally means only that the prosecutor is not confident she could obtain a conviction based upon available evidence.
Any time an employer chooses to allow the employee to continue working but with new duty limitations, the employer must also account for proper monitoring and supervision to ensure the employee is abiding by the limitations and no other potentially dangerous situations occur. Failure to provide proper supervision following the first allegation of sexual misconduct is a key element in lawsuits arising from subsequent acts of alleged misconduct and is particularly damning because the plaintiff is able to show an employer’s actual notice of a potential problem with the employee.
Sexual misconduct, be it sexual harassment, sexual assault, or sexual abuse, hurts everyone. When it occurs, there is very often a highly damaged victim who seeks retribution. Often, this means suing the organization that brought together the perpetrator and victim for damages. In some, albeit rare, cases, the allegations are made by someone who was not a victim of sexual abuse or assault, but who has other motivations. In either event, the costs and damage done to employers can be very high. Employers can limit the potential for allegations and prevent sexual misconduct all together by taking simple steps from the moment a potential employee begins the application process, and by making prudent decisions during the course of employment. This benefits everyone in the long run.
1 For ease of reference we will refer to all cases as “employment-based” cases, which also includes those in which the alleged perpetrator is an organization’s volunteer.
2 Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 751 (Fla. 1st DCA 1991).
3 See Garcia v. Duffy, 492 So. 2d 435, 439 (Fla. 2d DCA 1986).
4 Tallahassee Furniture Co. v. Harrison, 583 So. 2d at 751.
6 Id. at 757.
7 Garcia v. Duffy, 492 So. 2d at 440.
8 Tallahassee Furniture at 753
9 Of course, when terminating an employee for mental or physical health reasons, be sure that you comply with applicable federal, state and local laws regarding discrimination and disability accommodation.