Catholic Clergy Settlement Highlights Issues of Vicarious Liability for Sexual Abuse and Sexual Harassment

The long-running tragedy of the Catholic clergy abuse scandal has, by now, become a lurid fixture of our popular culture. (On a non-sectarian note, a large number of abuse cases are pending against Protestant clergy as well). The recently announced $660 million dollar abuse settlement by the Los Angeles Archdiocese has once again put these cases in the media spotlight. 

Yet, despite their religious context, these clergy abuse claims are not unlike the lawsuits for sexual harassment routinely faced by California employers. At their core, all such claims are premised on the allegation that the employer (whether secular or religious) should be held liable for the bad acts of its employees (or other agents). Thus, aside from the threshold question of whether the misconduct actually occurred in the first place, employer liability in the secular realm will turn on the same set of questions:

  • Was the misconduct closely related to the workplace or the employee’s job duties?
  • Was the employee a supervisor or highly placed manager?
  • Did the employer have advance notice that the employee could pose a risk to others? 
  • Did the employer take reasonable steps to prevent the employee’s misconduct before it happened? 
  • Did the employer investigate and discipline the wayward employee, or did it implicitly “ratify” the conduct after-the-fact by turning a blind eye?

Depending on the answers to these questions, any California employer could find itself legally liable for an employee’s sexual misconduct. For example, the California Fair Employment and Housing Act (the “FEHA”) imposes strict vicarious liability against the employer for any sexual harassment (which may arise from conduct running the spectrum from offensive language to rape) perpetrated by a supervisor.

In the recent case of Myers v. Trendwest Resorts, Inc., 148 Cal.App.4th 1403, (2007), a California Appellate Court held that “in order for the employer to avoid strict liability for the supervisor's actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment.” Id. at 1421 (emphasis added). Thus, even where the conduct occurs away from work and outside of working hours, employers are likely to be found liable for supervisor sexual misconduct toward other employees so long as there is even the slightest connection to work.  Id. at 1424. 

An employer may also be liable for the sexual misconduct of its employees toward customers or members of the public if it “knew or should have known” of the danger posed by the employee yet failed to take reasonable steps to prevent the assault or other misconduct from occurring. See Randi W. v. Muroc Joint Unified School Dist., 14 Cal.4th 1066 (1997).

Thus, to avoid the fate of the besieged archdioceses around the country, the same sound advice pertains to any entity with employees – screen your employees in order to avoid obviously bad hiring decisions, have a well-publicized policy against harassment or misconduct, train your employees to identify and report misconduct, and take prompt remedial action rather than attempting to cover up any resulting complaints. 

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