An organization may be liable for acts of abuse committed by an employee or representative. In a general sense, there are two ways an organization can be held legally responsible for acts of employees:
This legal phrase literally translates as, “let the masters answer.” In common terms, it means the employer can be held legally responsible for acts of its employees and representatives which occur in the course and scope of employment. The challenge in this approach is proving that somehow the abuse occurred in the “course and scope” of the employee’s duties. Would any employer permit such heinous acts? On occasion, however, the employer may give the employer’s grant of authority to the employee may at least border on permission. Nonetheless, this is a difficult burden in any effort to pin the legal responsibility for sexual abuse on an organization or employer.
Negligent Hiring, Retention or Supervision
Most employers or organizations undertake some process to screen applicants. What if that is done inadequately? What is the employer fails to follow up on references that would have disclosed prior sexual misconduct by an applicant? What if the employer knows of some report of prior misconduct but fails to investigate the allegations? In short, what if a potential employee has committed multiple past acts of sexual predation or is a registered sexual offender?
Now, let’s assume the employer hires an individual. The individual may not have any prior reports or incidents of misconduct.
However, the employer of a daycare knows of allegations made by children that they are being taken into the restroom where the worker is fondling them. If reports are made to the daycare center and there is a failure to investigate and take action, the daycare center may be liable for failing to properly supervise the employee.
Responsibility for Negligence
In both instances, the responsibility is placed on the organization for its own acts or omissions in preventing abuse. This is a slightly different approach to respondeat superior claims where the employer is liable even if there was no negligence in either hiring, retention, or supervision. These cases have their own challenges. In most situations, the victim must prove that the organization had some level of knowledge or notice that the perpetrator was a threat to the ultimate victim.
The same principles apply irrespective of the nature of the organization. In other words, although a daycare center has been used as the example here, other organizations can be examined relying on the same considerations. Simply stated, a trust first-time perpetrator with no signs or signals of imminent abuse, may pose a challenge in proving the elements of a civil child abuse claim that will implicate the organization and not just the perpetrator.