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.
Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
A federal court in Illinois ruled that failing to conduct a background check on a new employee hired to work in a children’s hospital was, by itself, evidence of negligence, exposing the hospital to liability based on negligent hiring for the employee’s molestation of several children.
The court addressed four areas of liability
Seven minors (the “plaintiffs”) sued a children’s hospital claiming that they were sexually abused while patients at the hospital, and that the hospital was responsible for the abuse on the basis of negligent hiring, retention, and training. The court also addressed the claim of vicarious liability.
The court determined liability exists for the hospital based on the claims made by the plaintiffs. It rejected the hospital’s motion to dismiss the lawsuit, allowing it to proceed toward trial.
Negligent hiring and retention
The court noted that an employer may be held liable “for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.” To establish a claim for negligent hiring or retention, the court cited a previous Illinois court decision determining that a plaintiff must show:
(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff’s injury.
The court in the present case continued:
Importantly, “[t]o successfully plead a cause of action for negligent hiring or retention, it is not enough for the plaintiff to simply allege that the employee was generally unfit for employment. Rather, “[t]he particular unfitness of the employee must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” For example, knowing that an employee was “vicious and dangerous” might make his assault of a customer foreseeable.
In support of their negligent hiring and retention claims, the plaintiffs noted that a nurse at the hospital had a long criminal record that rendered her clearly unfit to work as a nurse for children. They alleged that the hospital did not conduct a proper background check and so she was hired. She then repeatedly sexually assaulted at least one of the plaintiffs.
The court said that the hospital should have been aware of the nurse’s unfitness when she was hired. It referred to an earlier case holding in which the Illinois Supreme Court held that a church’s failure to conduct a background check before hiring a youth minister satisfied the “should have known” requirement of a negligent hiring claim (i.e., the employer knew or should have known that the employee had a particular unfitness for the position). Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019).
The court further stated:
A children’s hospital surely has an at least comparable duty to screen its employees. And, once discovered, a long criminal history would put a reasonable person on notice that an employee might use a position of authority to abuse vulnerable children.
The court also concluded that the hospital was guilty of negligent retention because it retained another male employee despite knowledge of several allegations of sexual misconduct against him. As a result of these allegations against the male employee, the hospital “should have been aware that [the employee] was not fit to supervise vulnerable children. [The hospital] nevertheless retained [him] and he subsequently sexually assaulted [a victim].”
The court noted that the hospital allegedly had a policy of not properly investigating and punishing abuse, which presumably undermined any formal training employees received on proper conduct. The court concluded this made the hospital liable for negligent training. It explained:
[T]he Complaint suggests that this failure to create an institutional culture of accountability allowed widespread abuse to take place, resulting in the harm and cover-ups described in the Complaint. While the Complaint does not identify specific training programs that were inadequate or needed, such detailed pleading is not required.
Lastly, the plaintiffs argued that the defendants should be liable for the conduct of their employees under the theory of respondeat superior. Under the theory of respondeat superior (Latin for “let the master answer”) an employer can be vicariously liable for the conduct of an employee, but only for those acts that are committed within the scope of the employment. The court noted:
Illinois courts have held that “sexual assault by its very nature precludes a conclusion that it occurred within the employee’s scope of employment.” The plaintiffs thus may not be able to sustain [a] vicarious liability claim based on intentional infliction of emotional distress arising from sexual assaults that took place at [the hospital].
However, the court still allowed the vicarious liability claim to proceed because the plaintiffs also “stated a conspiracy claim,” and in one example, they made a plausible assertion that the hospital “hid evidence of ongoing abuse . . . covering up abuse was part of the employees’ responsibilities and had at least the partial purpose of benefiting [the hospital].”
What this means for churches
The most significant aspect of this case was the court’s conclusion that the hospital could be responsible on the basis of negligent hiring for a nurse’s acts of child abuse solely because it failed to perform a background check on her when she was hired.
The relevance of Doe v. Cole
The relevance of this ruling to churches is clear: A church that fails to perform background checks on youth and children’s workers before they are hired may be liable on the basis of negligent hiring for any abuses perpetrated against minors by those workers.
It is also noteworthy that the court relied on a relatively recent, 2019 decision by the Illinois Supreme Court in reaching its conclusion.
In that case, a church’s youth pastor engaged in a sexual relationship with a minor female in the youth group (the “victim”). The victim and her parents (the “plaintiffs”) later sued their church, several regional denominational agencies, and the national church, claiming that they negligently and willfully and wantonly hired, supervised, and retained the youth pastor.
The plaintiffs claimed that no background check was completed on the youth pastor when he was hired, or at any time or after, and that the youth pastor used the same pseudonym, “BluesGod88,” to “friend” youth and adult members of the church on social media sites and to post obscene photos of himself on pornographic websites.
The plaintiffs alleged that the pseudonym “BluesGod88” could have been associated with the youth pastor’s name by way of a simple Google search and that he used the same pseudonym on child pornography websites.
The trial court dismissed all of the plaintiffs’ claims. A state appellate court agreed with most of the trial court’s decision, and the case was appealed to the state supreme court.
The supreme court noted that a negligent hiring claim requires a plaintiff to prove:
“(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness [directly] caused the plaintiff’s injury.”
The plaintiffs claimed that the church knew or should have known at the time it hired the youth pastor that he had a sexual interest in children, and that it failed to conduct a background check. The plaintiffs further alleged that a simple Google search of the youth pastor’s name would have revealed his pseudonym.
The church insisted that, to prove negligent hiring, the plaintiffs must allege not only that no background check was performed but also what a background check would have uncovered, and any inference that a Google search of someone’s name would reveal that person’s history of visiting pornographic websites was implausible.
The Illinois Supreme Court concluded:
To prove a negligent hiring claim, a plaintiff must show not just that an employee was unfit but that the employee was unfit in a particular manner, which particular unfitness “must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” Plaintiffs allege that “[a] basic, cursory Google search into the online public presence of [the youth pastor] would have revealed [his] activity, which included posting public photos of his own genitalia, on numerous pornographic websites.” [The plaintiffs] maintain that they have evidence that such a Google search at or before [his] hire would have alerted [the church] to [the youth pastor’s] visits to child pornography websites and thus put it on notice of [his] particular unfitness—his sexual interest in children—that later proximately caused [the victim’s] injuries. . . .
We acknowledge [the church’s] argument that a background check is unlikely to produce an individual’s Internet browsing history, but that is a factual dispute. Myriad businesses offer to perform detailed background checks for employers and youth activity sponsors, and [victims] will have to carry their burden in proving their claim.
Plaintiffs have alleged that a background check, by way of a cursory Google search, would have put [the church] on notice of [the youth pastor’s] sexual interest in children at or before his hire. This is a factual allegation and more than a mere conclusion. [The youth pastor’s] sexual interest in children is the particular unfitness alleged to have caused [the victim’s] injuries. Thus, if proven, these facts might entitle plaintiffs to recovery.
Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019).
Understanding background checks
The court in the Doe case concluded that an employer can be liable on the basis of negligent hiring for the sexual abuse of a minor by an employee if it failed to conduct a “background check” prior to or at the time the employee was hired. But what is a background check?
The court in the Doe case concluded that a background check includes a Google search of a person’s name to discover pseudonyms used to access adult and child pornography websites, including the posting of obscene photos of himself.
But the term “background check” includes much more than a Google search. Depending on the nature of the job, it may also include one or more of the following:
- criminal records checks
- reference checks
- employment (confirming that the applicant worked for prior employers listed on the application form)
- motor vehicle records
- Social Security number check (confirms identity and residential history)
- credit history
- professional licenses and certifications
The types of searches selected for any particular applicant will vary depending upon the risks associated with the position.
Comprehensive screening includes more than criminal background checks
As important as criminal records checks are in a comprehensive screening process, they should never be viewed as the only screening procedure to be used.
To illustrate, a church agency in Florida was found liable for a pastor’s molestation of a child in a church that he established. The agency had assisted in training and financing the pastor, and it had conducted a criminal records check. Unfortunately, the church did not call or obtain references from the two prior churches in which the pastor had been employed.
The pastor had molested at least one child in each of these churches. The victim’s parents argued that if the agency had contacted these other churches for a reference, they would have been advised of the pastor’s prior acts of molestation (which were known to leaders in both churches). The court agreed and found the agency liable for the pastor’s acts on the basis of negligence.
This case is important because it demonstrates that criminal records checks should never be viewed as the only screening procedure to be utilized in assessing the fitness of persons for volunteer and paid positions in a church.
Key point. Criminal records checks are not the only step a church should take in screening workers. They are one link in a chain. Keep in mind that most child molesters have no criminal record. Effective protection comes with a multi-faceted approach that includes a suitable application form, reference checks, an interview, criminal records checks, and a 6-month rule (volunteers are not allowed to work with children until they have been members of the church for at least 6 months).
Golbert v. Aurora Chi. Lakeshore Hosp., LLC, 2021 U.S. Dist. LEXIS 46245 (N.D. Ill. 2021).