Employment Practices – Part 4

A New York court ruled that a charity was legally responsible for the sexual molestation of a child by a custodian.

Church Law and Tax2002-09-01

Employment Practices

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.Negligence as a Basis for Liability

* A New York court ruled that a charity was legally responsible for the sexual molestation of a child by a custodian because it failed to conduct a criminal records check when the custodian was hired. A school-based community center provided recreational and educational programs for minors, including after-school programs. The center hired a man (“Gene”) as a custodian. When he was interviewed for the job, Gene admitted that he had a criminal conviction for a crime that did not involve a sexual offense. The center did not conduct a criminal records check—it was not its policy to do so. In fact, Gene had an extensive history of criminal conduct including armed robbery, assault, theft, burglary, and possession of a controlled substance. At first, Gene turned out to be a model employee. There were no complaints from parents, teachers, or children. In fact, the staff, parents, and people in the community thought well of him. About a year and a half after he was hired, he received a positive performance evaluation. However, two years after he was hired, Gene sexually assaulted a 12-year-old girl whom he had taken to the center’s basement. He was convicted of felony sexual offense and sentenced to prison. The victim’s mother sued the center on the basis of negligent hiring and retention, and negligent supervision of the children at the center. A trial court dismissed all claims, and the mother appealed.

A state appeals court ruled that the lawsuit should not have been dismissed. The court observed,

An employer may be liable for the negligent hiring and retention of an employee when it knew or should have known of the employee’s propensity to commit injury. Moreover, an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee. Here, a jury could reasonably conclude that the center had a duty to conduct an investigation of Gene’s background given its actual knowledge that he had a conviction, and that he would be working as a custodian in a place crowded with children… . Had the center conducted an investigation, it would have learned of Gene’s extensive criminal record, which includes crimes involving violence, such as assault and attempted robbery. The center’s argument that a background check would have revealed a propensity for violence, but not a propensity for sexual violence, is not dispositive, since it cannot be said that, as a matter of law, it is unforeseeable that a person with convictions for assault would commit a sexual assault when placed in a setting such as this center.

Application. This case illustrates the following important points:

1. Custodians sometimes molest children. The court noted that Gene worked “in a place crowded with children.” The same could be said of many church custodians. When church leaders screen workers, they should be sure to include custodians.

2. The court concluded that an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee. In this case, those facts included the following: (1) the center knew of one of Gene’s criminal convictions at the time he was hired based on his own disclosure; (2) Gene was hired as a custodian in a place crowded with children. These two facts should have caused the center to conduct a criminal records check, which it failed to do.

3. The court rejected the center’s argument that it could not be liable for failing to conduct a criminal records check since such a check would have revealed a propensity for violence, but not a propensity for sexual violence. The court concluded that “it cannot be said that it is unforeseeable that a person with convictions for assault would commit a sexual assault when placed in a setting such as this center.” T.W. v. City of New York, 729 N.Y.S.2d 96 (2001).

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