School Not Responsible for Student’s Alleged Molestation by Employee

School had conducted criminal records check before hiring the staff member.

Church Law and Tax1993-03-01Recent Developments

Sexual Misconduct by Clergy and Church Staff

Key point: Religious organizations may avoid legal liability for the sexual misconduct of their employees and volunteer workers if they conduct a criminal records check on such persons before they begin their duties.

A Georgia appeals court concluded that a private school was not responsible for the alleged sexual molestation of a 13-year-old girl by a male staff member since the school had conducted a criminal records check on the worker before hiring him. A 13-year-old girl attended a private boarding school for one school year. She later sued the school for emotional trauma allegedly suffered as a result of having participated in a consensual sexual relationship with an adult male staff member at the school during this period. The staff member in question, who had been employed by the school as a recreational supervisor, categorically denied having engaged in sexual relations with the child. The trial court then granted the school’s motion for summary judgment, and this appeal followed. The victim’s father testified that he became concerned about the nature of the staff member’s relationship with his daughter during the course of the school year because she frequently talked to him on the telephone, and also because she had some photographs of him, along with a business card pertaining to a part-time job which he apparently held with a radio station. The victim’s father conveyed his concerns to his daughter’s guidance counselor at the school and was referred by the latter to the school’s director. He testified that the director told him that the staff member was a responsible person who was “engaged to be married or something” and that she did not think the father “had anything to worry about.”

The victim sued the school, alleging that it had been negligent in selecting the staff member. In concluding that the school was not legally responsible for the minor’s injuries, the court observed: “The [victim] contends that issues remain as to whether the appellee was negligent in hiring, retaining or supervising the employee. In order for an employer to be held liable for the criminal conduct of an employee based on such negligence, it must be shown that the employer knew or should have known of the employee’s criminal propensities. The evidence of record in the present case establishes without dispute that a records check was conducted on the employee prior to his being hired but that it turned up no information suggesting that he had any criminal record or propensities. The [victim] has produced no contrary evidence suggesting that such information was available but overlooked.” This case is significant in that it suggests that a criminal records check constitutes evidence that an employer exercised reasonable care in the selection of an employee, so long as no other evidence was readily available to the employer suggesting that the employee would pose a risk. Doe v. Village of St. Joseph, Inc., 415 S.E.2d 56 (Ga. App. 1992).

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