• Key point: Religious organizations may be liable for the sexual misconduct of an employee if they exercise reasonable care in selecting and supervising that employee.

• A Louisiana appeals court, in an unfortunate decision, found a charity liable for the sexual misconduct of an employee who had been thoroughly screened and supervised. The facts are these. A Baptist hospital hired a male nursing assistant for a psychiatric ward after conducting a thorough background check that showed no criminal record and no unfavorable references from former employers. After working for six months, this employee raped a 16-year-old girl late one night. The victim sued the hospital, and a jury returned a verdict for $450,000. The hospital appealed, arguing that it could not be responsible for the sexual misconduct of the employee. The court agreed that the hospital could not be liable for the assault on the basis of negligent hiring, because of the thorough nature of its pre-employment investigation. However, the court concluded that the hospital was legally responsible for the assault on the basis of “vicarious liability.” Under this doctrine, an employer is responsible for the damages caused by its employees in the course of their employment. This liability is based on the employment relationship rather than upon negligence. In other words, an employer can be responsible for an employee’s actions no matter how much care it exercises in selecting or supervising that employee. However, the court noted that when determining whether an employer is responsible for an employee’s actions, the following factors must be considered: (1) was the employee’s act “primarily employment rooted”; (2) was the employee’s act “reasonably incidental to the performance of the employee’s duties”; (3) did the employee’s act occur on the employer’s premises; and (4) did the act occur during normal working hours. Not all of these factors must be present for an employer to be responsible for an employee’s actions. The court concluded that the hospital was responsible for the assault in this case because the assault occurred on the employer’s premises while the employee was on duty, and the assault was “reasonable incidental to the performance of his duties as a nurse’s assistant although totally unauthorized by the employer and motivated by the employee’s personal interest.” Further, the court observed that the assault was “closely connected to his employment duties so that the risk of harm faced by the young female victim was fairly attributable to his employer.” What is the relevance of this case to churches? It illustrates that a church may be responsible, in some states, for the sexual assault of an employee (or volunteer) no matter how much care is exercised in the selection and supervision of the worker, if the assault occurs on church premises during working hours and is “incidental to the performance of the employee’s duties.” In our opinion, the court’s decision is a legal travesty, for it essentially adopts a theory of “absolute liability” for the sexual assaults that occur on an employer’s premises during working hours, particularly if the assault somehow occurs in the course of a worker’s duties. There is no doubt that rulings such as this will cause some employers to abandon or reduce their screening and supervision of employees. After all, why bother, if you are responsible for your workers’ conduct no matter how much care you exercise in selecting and supervising them? This is certainly an understandable reaction and an inevitable consequence of this lamentable decision. Our recommendation, however, is to view this case in the following light—if we can be found legally responsible for the sexual assaults of our workers no matter how much care we exercise, then we need to exercise even more care to be sure that such assaults never happen. This is the responsible reaction to the court’s decision, particularly in Louisiana and in those states that adopt a similar rule. Samuels v. Southern Baptist Hospital 594 So.2d 571 (La. App. 4 Cir. 1992).

See Also: Vicarious Liability | Negligent Selection

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