From Waterboarding to Employee Harassment: Liability for Employees' Bad Acts

Recent discussion of whether C.I.A. interrogators should be held liable for acts now considered to be torture highlights the questions that come up when deciding who should be held to account when an employee violates the law. Particularly because (unlike the federal government) small businesses can't claim sovereign immunity if sued, they must pay strict attention to the doctrine of "respondeat superior." This holds that an employer is liable for the bad acts of an employee if the employee was acting within the scope of their employment.

Hopefully most small business owners and employees will never have to confront questions of waterboarding. It's also likely that any bad acts committed by most employees will not have been specifically given the green light by written opinions from their boss' lawyers. This is good because unlike the federal government, businesses cannot claim sovereign immunity when they get sued.

"Respondeat superior" means "let the master answer." Under the doctrine of respondeat superior, an employer is legally responsible for the bad acts of its employees if the employee is acting within the course and scope of employment. This means liability for the business if the employee was doing their job, carrying out company business, or otherwise acting on the employer's behalf when the bad act took place. However, if the employee acted independently or purely out of personal motives, the employer might not be liable.

In some states, failure to take reasonable care in hiring employees can lead to a lawsuit for negligent hiring, while failing to fire an employee who poses a danger to others can lead to a lawsuit for negligent retention. The employer is legally responsible only if they acted carelessly, and knew or should have known that an applicant or employee was unfit for the job yet did nothing about it.

Additionally, an employer can be held liable for unlawful harassment by supervisors if it involves discriminatory treatment based on race, color, sex, religion, national origin, age, or disability, and the conduct is sufficiently frequent or severe to create a hostile work environment or results in another violation of employment law.

• Waterboarding Used 266 Times on 2 Suspects (NY Times)
• AutoZone taken to court over attack by employee (TheCalifornian.com)
• Employer Liability for Harassment by Supervisors (EEOC)
• Driving on Company Time (FindLaw)
• Sexual Harassment by a Supervisor - Minimizing Damage Exposure (provided by Walters & Caietti, A.P.C.)