Employers May Be Liable for Intentional Torts of Employees
In Anicich v. Home Depot U.S.A. Inc., No. 16-1693, 2017 U.S. App. LEXIS 5202, (7th Cir. Mar. 24, 2017) the Seventh Circuit reversed the district’s dismissal of plaintiff’s claim against employers where a supervisor killed a co-worker he had been harassing. In contrast to the district court’s finding that the employer owed no duty for such intentional torts, the Seventh Circuit held that the facts alleged were sufficient to state potential claims for negligent hiring, supervision, or retention under Illinois law. Consequently, plaintiff’s claims will be allowed to proceed against the employer to give plaintiff an opportunity to establish liability for the death described below.
In Anicich, the employers filed a 12(b) 6 motion to dismiss, arguing that they owed no duty to the plaintiff where a supervising co-worker harassed and eventually murdered, then raped his subordinate. Anicich, 2017 U.S. App. LEXIS 5202, at *3. Accepting the facts as stated in the complaint as true, the court recited a disturbing scenario. Id.
Plaintiff alleged that the defendant employed a supervisor, Cooper, who had a history of sexually harassing young female subordinates. Id. at *4. Eventually, he focused on plaintiff’s decedent, Alisha, and began calling her his girlfriend. His behavior ranged from making verbally inappropriate comments and outbursts to physical and ultimately deadly violence. Id. at *5. These were accompanied by threats to affect Alisha’s employment. The allegations suggest that Alisha complained about Cooper’s behaviors to other supervisors and managers. Many of these behaviors took place at the workplace. Cooper was ordered to take anger management classes. Id. at *6. However, when he complained about having to do so, he was told to take another course. Unfortunately, when Cooper refused to complete the classes, no one took any action against Cooper who was allowed to remain as Alisha’s supervisor. Id. Alisha was ultimately forced by Cooper to attend a wedding with him or risk being fired or having her hours cut. After the wedding, Cooper strangled her to death and then raped her. Based upon these facts, the court held that Illinois law imposes a duty upon an employer to act reasonably. Id.
The Seventh Circuit relied upon Van Horne v. Muller, 185 Ill. 2d 299 (1998), which supports the position that employers may be sued for negligent hiring and retention of persons it knew or should have known were unfit for the job in a manner that created a risk of harm or danger to third persons. Anicich, 2017 U.S. App. LEXIS 5202, at * 8; Citing Platson v. NSM, America, Inc., 322 Ill. App. 3d 138 (2d Dist. 2001). A plaintiff may recover where 1) the employer knew or should have known that an employee had a particular unfitness for his or her position such that the unfitness for the position created a danger or risk of harm to third persons; 2) that such unfitness was known or should have been known at the time of hiring, retention, or failure to supervise; and 3) that such unfitness caused the plaintiff’s injury. Anicich, 2017 U.S. App. LEXIS 5202, at *9.
The court held that this ruling was consistent with existing law. “…[E}mployers can [already] be held liable for failing to discipline harassing employees.” quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 1998). Anicich, 2017 U.S. App. LEXIS 5202, at *10. The court extended the employers’ liability to activities off the work premises where the plaintiff contends that the offsite activity was the result of undue supervisor authority bestowed by the employer upon the offender. Id. at *13. As it relates to proximate cause, the court noted that the plaintiff need only establish that some harm was foreseeable. Id. at *20. It is not necessary to prove that the specific harm caused was foreseeable or could have been predicted. Id.
This case would appear to be an extreme example of the type of conduct supervisors may engage in which places their employer at risk of civil suits. What duty does an employer have to keep its employees from engaging in romantic relationships? When does an employer have to step in? This case establishes that employers must take action and follow through when it comes to its efforts to address complaints about employees in supervisory positions.