Are Employers Liable in Tort for Employees' Sexual Assaults?
Should employers be liable in tort for their employees' sexual assaults? Until recently, the universal answer was a resounding "no."
Recently, the American Law Institute adopted a "Special Rule on Vicarious Liability for Sexual Assault." The Special Rule rejects the notion that employers can never be held liable in tort for their employees' sexual assaults. Under the Special Rule, an employer can be held liable for an employee's sexual assault in four instances;
The nature or conditions of the employee's employment create a reasonably foreseeable risk of sexual assault;
The person is particularly vulnerable, because of age, mental capacity, disability, incarceration, detention, confinement, medical need, or other similar circumstances;
The employer facilitates the sexual assault by providing the employee with substantial power, authority, or influence over the person; and
The sexual assault occurs when the employee is performing work assigned by the employer or engaging in a course of conduct subject to the employer's control.
What is Meant by "Particularly Vulnerable"?
The Special Rules provide a number of examples of various types of employment where an individual might encounter a "particularly vulnerable" individual. These employment positions include police and correctional officers, group and nursing home caregivers, counselors, transportation company employees, and youth sports coaches. The victims are generally those who are mentally or physically impaired patients at nursing homes and group homes, children, parishioners, asylum seekers, interns, hotel guests, and convenience store clerks. In sum, liability can attach when the nature of the employment puts the employee in a relationship of power, access, or control over the particularly vulnerable individual.
What Types of Industries Can Be Most Affected by the Special Rule?
Of course, any employer may have an employee, customer, client, or patient in a particularly vulnerable situation. The industries that would be most affected by the Special Rule would be healthcare, education, hospitality, and entertainment.
What Should Employers Do Now?
Seemingly, the main goal is to ensure that employers do not place individuals who may sexually assault another in a position where they would be in the company of particularly vulnerable individuals. Conducting background checks is one avenue to make such a scenario less likely. Employers may also enhance their security measures, such as improving video surveillance.
And, of course, it is always appropriate to maintain adequate insurance coverage to protect against these situations.
This document is designed for general information only. The information presented in this document should not be construed to be formal legal or tax advice nor the formation of a lawyer/client.
For further information please contact me at www.kmckernanlaw.com kevin@kmckernan.com or 718-317-5007.