Two recent appeals court decisions — one in Michigan and the other in New Jersey — suggest that at least some judges expect employers to become increasingly pro-active, if not clairvoyant, in anticipating possible criminal or other immoral behavior by their employees. In neither of these cases could the employee conduct be characterized as anything but reprehensible (as well as criminal). Both appellate decisions suggest that, to be safe, employers may have to intrude more deeply and systematically into employees’ personal conduct or propensities than previously thought.

In the Michigan case, Brown v. Samuel Whittar Steel, a plant foreman with no prior history of violence sexually assaulted a female security guard assigned to the plant by a contract security firm. The foreman subsequently pleaded no contest to a reduced charge of attempted criminal sexual conduct in the third degree. The security guard brought a negligence action against the foreman’s employer. According to the security guard, the employer knew or should have known of the foreman’s violent propensities, and thus it should have protected her against the sexual assault that occurred.

Negligent hiring or retention claims alleging that an employer knew or should have known of an employee’s propensity for violent or similarly dangerous behavior are hardly a novelty. In past cases, though, the knowledge of an employee’s violent propensity invariably arose because the employee had a prior criminal (usually felony) conviction for violent behavior or, at minimum, had previously engaged in physically violent behavior in the workplace. Even so, courts were often reluctant to find a propensity based solely on the earlier conviction for fear of stigmatizing as unemployable those individuals who had “paid their debt to society.”

What is unique and potentially far-reaching about the Brown decision is that the foreman had no criminal or otherwise violent history. Even the security guard he attacked admitted she had never feared he would physically assault her. Instead, the court relied on sexually explicit and crude comments the foreman had earlier made to the security guard, but none had threatened forcible sexual assault. The court nevertheless permitted the security guard’s lawsuit to proceed to trial based on what the foreman had said, and whether that suggested he could become violent in the future, rather than the usual requirement in such cases, i.e., evidence he had actually been violent in the past.

Ironically, while opining that there was “no requirement that [the security guard] be able to predict the future,” the Michigan Court of Appeals panel held the employer to this very standard of clairvoyance. Must an employer now fire every employee who makes sexually explicit and crude comments? Is it limited to the workplace? The employer in the Brown case has appealed to the Michigan Supreme Court.

The New Jersey appellate decision, Doe v. XYC Corp., also involved an employer’s alleged negligence – this time in supervising or controlling its employee’s use of his work computer. After the employee’s co-workers reported the employee had been using his computer to access “hard core” pornography, management checked the employee’s web log and confirmed that he indeed had been accessing a variety of pornographic sites. While the employer did not actually open or review any of these sites, the web address for at least one siteappeared to involve children or teenagers. Management warned the employee, and he stopped accessing these sites (at least from work) for a period of time. Unknown to his employer, however, the employee started taking nude and semi-nude photographs of his tenyear- old stepdaughter. He then transmitted these photos to a child pornography site from his work computer, in order to enroll in the site. Authorities arrested the employee after they discovered the stepdaughter photos in the employer’s dumpster.

The employee’s (by then) ex-wife sued the employer, arguing that it had been negligent in not reporting the employee to the authorities when management first discovered pornography on his work computer. The New Jersey appellate court agreed with this theory, holding that the employer had both a right to review the employee’s computer content pursuant to its policy and a corresponding obligation to investigate the content (rather than just the web log) — an investigation that would have disclosed the employee was trading in child pornography before he took the illicit photos of his stepdaughter. With at least imputed knowledge that the employee was viewing child pornography on his work computer, the court held the employer had a duty to not only take internal disciplinary action but also to report the criminal activity to the authorities. The employer’s failure to do so could have damaged the stepdaughter; if so, the employer would be liable. Needless to say, this is a many-linked chain of causality.

Together, these recent court decisions (which have gained a measure of notoriety) suggest that at least some courts expect employers to be more suspicious of employee conduct, to more vigilantly monitor it, and to anticipate that employees might engage in criminal conduct — all based on cues that in the past would have been insufficient to invite a pro-active role. While certainly no one harbors sympathy for a rapist or a child pornographer, the troubling question these cases raise is what other cues from the workplace or beyond might be found adequate to require job action or create potential liability when the worst-case-scenario occurs. These proverbial “bad facts make bad law” decisions seem to be telling employers they are at risk if they tolerate any impurities in their employees.

Julia Turner Baumhart

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