Christian College Not Liable for Sexual Misconduct of Former Student Hired by a Church

Churches should be aware that states are divided on liability based on recommendations related to hiring.

Key point. While employers may not have a duty to provide a reference about a former employee, if they choose to do so they may be liable if they fail to disclose information suggesting that the individual may pose a risk of harm to others.

A Missouri court ruled that a religious school was not liable for the sexual misconduct of a former student on the ground that it provided a positive reference to a church on the offender.

Church sues college over positive recommendation

A Christian college (the “College”) is an independent college that prepares students for ministry. On occasion, individual churches needing to fill open positions contact the College for recommendations. However, the individual churches, and not the College, make the ultimate hiring decisions.

Based upon the College’s positive recommendation, a church hired an employee (the “offender”) in 2004. As a result of that employment, the offender allegedly sexually abused a minor (the “victim”) from 2006 through 2010. The victim thereafter sued the College for negligence in providing a positive reference leading to the offender’s employment at the church.

The College asked the trial court to dismiss the case on the ground that the act of providing the church with an employment recommendation did not create a duty to the victim to exercise reasonable care. The court agreed, and the victim appealed.

A recommendation is not a proper basis for asserting negligence

On appeal, the victim argued that once a defendant undertakes to provide a recommendation to a prospective employer, the defendant has a duty to provide a nonnegligent recommendation if the defendant knows or has reason to know that a negligent recommendation involves an unreasonable risk of injury to the prospective employer or third parties. According to the victim, such a “duty” arises because of the fact that “other states have recognized . . . a duty to not provide negligent recommendations.”

In support of this claim, the victim cited cases in New Mexico, Texas, and California. But the court pointed out that the victim “has completely omitted, however, any citation to cases from other states rejecting the existence of such a duty.”

The court cited cases from Indiana, Kentucky, Washington, Illinois, and New York rejecting “the existence of a generalized duty to exercise care in making employment references.” To illustrate, it cited a New York case in which a court concluded that “the mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring.”

The appeals court concluded:

In light of these contrary cases from Indiana, Kentucky, Washington, Illinois, and New York, the victim’s mere citation to supporting cases from New Mexico, Texas, and California fails to analytically support or persuade us that such a duty . . . exists in Missouri’s common law.

What this means for churches

Church leaders often are asked to provide a reference on a former employee. This case illustrates that states are divided on whether former employers are liable for injuries inflicted by an employee for whom they provided a positive reference despite knowledge of wrongdoing. It cited cases in New Mexico, Texas, and California recognizing liability, and cases in Indiana, Kentucky, Washington, Illinois, and New York that did not recognize liability.

Key point. Providing references on former employees is fraught with risk, and should not be undertaken without legal counsel. Doe v. Ozark Christian College, 579 S.W.3d 220 (Mo. App. 2019).

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