Sexual Predators in the Workplace

Many employment lawyers are confronted with hostile environment claims where managers exploit their positions to seek sexual favors from employees working underneath them. Such an employment case obviously involves sexual harassment but is entirely different and generally far less devastating to a victim when a sexual predator is hired by an employer and is allowed to gain access to vulnerable victims through their jobs. As an example, if a mental health facility hires someone unsuitable for a position and that person takes sexual advantage of a mentally ill patient, it can readily be seen that such an occurrence could be extremely devastating to the victim and his or her family. The question is how to best deal with such a situation from a legal standpoint when such a case is brought to the attention of an attorney.
Here at Finch McCranie we have seen many unfortunate cases where patients have been raped and sodomized at health care facilities. We have had cases where patients have been raped by other patients who were not properly supervised and/or situations where patients were raped by employees of the staff of the health care provider. In the latter situation, one of the best legal remedies available to the innocent victim is to file a claim against the employer for negligent hiring and retention of the sexual predator/employee.
An employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known poses a risk of harm to others where it is reasonably foreseeable from the employee’s “tendencies” or “propensities” that the employee could cause the type of harm sustained by the victim. Thus, if an employer knew or in the exercise of ordinary care should have known that an employee hired and retained to perform duties involving personal contact with medicated or vulnerable patients was unsuitable for that position because he or she posed a reasonably foreseeable risk of personal harm to patients then, in that event, the employer can be held legally liable for having negligently hired and retained the unsuitable employee.
Sexual predators are criminals and because they are criminals and predators they can be very devious. By embedding themselves in jobs where they can gain access to helpless and vulnerable victims, the predators are more likely to be able to commit their heinous crimes without being detected and/or apprehended. Many times the victims cannot even identify their assailants. In other situations, the employee merely has to deny that the crime occurred and point out that the victim is mentally ill and/or heavily medicated and/or otherwise unreliable as a witness. Thus, these predators should never be given access to the most vulnerable amongst us and yet if an employer does not conduct a proper background check, such predators can be given unlimited access to an unlimited number of unsuspecting victims.
Any family that becomes aware that a helpless loved one has been sexually assaulted at a mental health facility, nursing home, assisted living facility or hospital should consider exploring whether the employee predator was negligently hired or retained by a negligent employer. If the predator is prosecuted and goes to jail, they are not going to have any assets to provide for compensation to what the victim is forced to endure. Oftentimes, medical expenses are incurred, counseling expenses are needed and other damages are imposed upon the victim and yet there is no available relief from the predator. In such a context, the law has long been that an employer is legally responsible for the acts of the employee if it should have reasonably been foreseen that the offending employee could pose a risk of harm to those entrusted to their care.