If you or someone you know has experienced sexual assault in the workplace by a coworker, you may be wondering if your company can be held liable. The answer to this question is determined by the extent to which the company created the opportunity or occasion for such abuse to occur.
There are three legal concepts that apply in these situations. They are: negligent hiring, negligent retention, and respondeat superior. If you, as a victim, are able to prove one or more of these elements in court, you may be able to successfully recover damages against the company for the coworker’s actions.
In order to demonstrate the occurrence of negligent hiring, you must show as a victim that:
- Your employer had a responsibility to investigate the offending employee, but failed to do so.
- The employer’s hiring of the employee was not reasonable considering the information available to the employer about the employee.
- A proper investigation would have uncovered the unsuitability of the employee for his or her position.
The investigation required into the employee’s background may depend on the type of work involved with the position. For instance, someone who has direct contact with the public, or will be entering the homes of customers, may require a more strict or thorough background check.
In order to prove negligent retention, the victim must demonstrate that:
- During the course of the employee’s tenure at the company, the employer was aware, or reasonably should have been aware, of the employee’s unsuitability for the position.
- The employer failed to pursue and take additional action such as conducting an investigation, or reassigning or firing the employee.
As it concerns negligent retention and negligent hiring, as a victim you must prove a link between your employment and the assault. This link is present when:
- The assault occurred at a location in which the offending employee and the victim had authorization to be.
- The offending employee and the victim contacted each other as a direct result of their employment.
- Had the sexual assault not taken place, the employer would have received some type of benefit (even if only indirect or potential) from the meeting between the employee and the victim.
The concept of respondeat superior places responsibility upon the employer for an assault committed by its own employee even if the employer did not commit negligence in its hiring or retaining of the employee. Under this legal theory in Mississippi, a victim would need to demonstrate that the assault was perpetrated within the tenure or extent of their employment, AND the assault occurred within the res gestae of the business being conducted so that the transaction is “one continuous and unbroken occurrence.” Richberger v. American Exp. Co., 73 Miss. 161, 171, 18 So. 922, 923 (1896).
The actions of an employee fall within the tenure or extent of employment when:
- The employee’s conduct was in accordance with the original reason for his or her employment
- The conduct took place within the space and time limits required or authorized by the work tasks to be performed
- The motivation of the employee’s conduct is at least partially due to the employee’s desire to serve the company
When the employee was assisted in carrying out the sexual assault by virtue of the relationship between his or her relationship with the employer, the assault is considered to have been committed within the scope of employment.
A company that conducts poor business practices can open up itself to employer liability. If a company fails to conduct thorough background checks, it will fail to have taken an important step in preventing potential sexual harassment in the workplace. Employers have a responsibility to routinely monitor and evaluate their employees for possible signs of unfitness for duty.
A quick note about assault cases tried in civil court
Understand that all of these actions take place in civil court, and that the claim against your employer is different from the claim against the person who assaulted you. While the accused may also face a trial in a criminal court proceeding, the personal injury claim you are making is separate from this. In fact, it is possible that the person who is accused could be found “not guilty” in criminal court, but still be held liable in civil court; the same is true about your employer, who may be held accountable even if the person who assaulted you is found “not guilty.”
These are complex cases. Taylor Jones Taylor offers comprehensive counsel to injury victims in Southaven, Hernando, Olive Branch, and the surrounding areas. To schedule a free consultation with an injury lawyer from our firm, please call 662-253-5193, or fill out our contact form.