• Key point: A prospective worker’s previous criminal act may have occurred so long ago that it no longer is relevant in evaluating whether or not to use the worker.
• In a significant ruling, a New York appeals court ruled that a landlord was not liable for the sexual molestation of a minor by a caretaker that the landlord had hired. In 1955, a man pleaded guilty to manslaughter and served a 5-year prison sentence. In 1964 he was hired as a caretaker by the owner of an apartment building. In 1967 a woman moved into the apartment building and soon became friends with the caretaker. In 1974 the woman gave birth to a girl. The caretaker served as the girl’s godfather, and as the child grew he became a frequent presence in her life. The child’s mother often left her daughter unattended with the caretaker. In 1987 it was discovered that the caretaker had been sexually molesting the girl for at least the last 5 years. The mother and daughter sued the landlord, claiming that he had been negligent in hiring a caretaker with a criminal record. A trial court rejected the landlord’s motion to dismiss the case, and the landlord appealed. A state appeals court concluded that the case should be dismissed. It began its opinion by observing that a state law makes it the policy of New York to “encourage the licensure and employment of persons previously convicted of one or more criminal offenses.” Specifically, the state law prohibits employers from discriminating against persons on the basis of a prior criminal conviction unless there is a direct relationship between the prior criminal conviction and the employment sought, or employment of the individual would involve an “unreasonable risk” to the property or safety of others. The court concluded:
If in this case we were to allow that [the caretaker’s] conviction for manslaughter in 1955 could lawfully have stood as a bar to his employment as a [caretaker] in 1964, then we would be determining that [he] could have been denied any employment for the more than 20 years that he worked for [the landlord] until he was arrested for molesting [the girl]. If we were to affirm the [trial court’s refusal to dismiss the lawsuit] we would be holding that the [landlord’s] employment of [the caretaker] could be found by a jury to constitute negligence that was the proximate cause of foreseeable injuries sustained by [the child]. Such a precedent would effectively compel any employer to deny employment to anyone who was ever convicted of a violent crime, contrary to the public policy stated in [state law] since the employer would upon such hiring face potentially catastrophic liability for any crime committed by that employee which was even minimally connected to the place of his employment.
The court also noted that the caretaker’s employment had nothing to do with the acts of molestation, and that his conviction for manslaughter some 20 years ago did not necessarily make him a danger to children. It observed:
[The caretaker’s] assaults upon the [child] had nothing to do with his employment as a [caretaker]. Rather it was the circumstance that [the caretaker] resided in the building that provided the setting for his friendship with [the mother] which in turn led to his becoming [the girl’s] godfather and her being permitted to visit him, unattended, in his apartment. Thus [the caretaker] could just as easily have committed his assaults upon [the girl] if he had been a rent paying tenant instead of living there as an adjunct to his employment as a [caretaker]. If the [landlord] could be held liable for negligent hiring under these circumstances, then any landlord who rented an apartment to an ex-offender could arguably be held responsible for the tenant’s crimes against his co-tenants on a theory of “negligent renting.” Thereafter landlords could only protect themselves from liability by refusing to lease living space to ex-convicts, who would then be rendered both unemployable and homeless.
Imposing liability upon an employer under the circumstances presented herein would have an unacceptably chilling effect on society’s efforts to reintegrate ex-offenders into mainstream society, contrary to precedent and the explicitly stated public policy of this state.
The most significant aspect of the court’s ruling was its conclusion that an employer is not necessarily guilty of negligence for hiring a worker with a 20-year-old criminal conviction for manslaughter who later molests a child on the employer’s premises. This case will be relevant to churches that are sued on the basis of negligence for hiring persons with criminal convictions in the distant past. Note, however, the following factors upon which the court based its decision: (1) a state law made it illegal for employers to discriminate against persons with criminal records; (2) the acts of molestation did not occur in the course of the caretaker’s employment; (3) imposing liability on employers in such cases would render persons with criminal records “unemployable and homeless”; and (4) the caretaker’s criminal conviction for manslaughter occurred some 30 years before the acts of molestation, and 20 years before he was hired by the apartment owner.
This case suggests that it may not be negligent to hire persons with remote criminal records in some cases. The time interval in this case was nearly 30 years. There are three points to emphasize here. First, very few courts have addressed the issue of the relevance of old criminal convictions in evaluating the suitability of workers. Other courts may not reach the same result as this court. Accordingly, this case should not be relied upon without the advice of legal counsel. Second, this case will be very useful in defending against a lawsuit that seeks to hold a church liable for the sexual misconduct of a worker with an old criminal conviction. Third, medical authorities generally have concluded that pedophilia is an incurable condition that at best can be controlled under very limited circumstances. Pedophilia refers to sexual contact with (or orientation toward) pre-adolescent minors. If pedophilia is incurable, then the number of years that have passed since a prospective worker was convicted of a crime involving inappropriate contact with a pre-adolescent minor is not relevant. It does matter that the conviction occurred 20 or even 40 years ago. If the conviction was based on pedophilic behavior, and pedophilia is incurable, then a church should never give such a person a “second chance” and place him or her in a position involving contact with minors.
In conclusion, this case will be helpful in the defense of churches that are sued for the acts of child molestation by youth workers. However, as noted above, it should not be relied upon by any church without the advice of legal counsel. Ford v. Gildin, 613 N.Y.S.2d 139 (A.D. 1 Dept. 1994). [PCL12A2, PCL12A3]
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