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Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.

Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.

Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.

Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.

It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances?

Chamallas maintains that the pattern of decisions reveals an implicit acceptance by judges of the outdated notion that sexual misconduct is ‘special.’  Whereas judges will treat cases in which an enraged employee attacks another, or a drunken employee carelessly injures a third party, as an expression of ‘normal’ human tendencies, they will regard cases of sexual abuse as the product of the individual employee’s ‘deviant’ compulsions.

The treatment of sexual abuse as exceptional, Chamallas argues, reflects a traditional bias in the law—one exposed long ago in feminist critiques of the law of sex crimes and workplace harassment. Although today courts are closer to accepting the idea that sexual violence is first and foremost violence, and that sex-based discrimination is first and foremost discrimination, courts applying tort law have not learned the equivalent lesson. Chamallas speculates that this failing may be attributable to judges’ cognitive biases, as well as to the power of stock, positive images of organizations such as hospitals, schools, and churches. Both kinds of error, she maintains, encourage judges to fixate on the individual abuser’s proclivities while ignoring the context that sets the stage for the abuse.

Chamallas next identifies developments in federal and foreign law that point the way to a better approach, including the Canadian Supreme Court’s 1999 Bazley decision. It imposed vicarious liability on a non-profit that operated treatment facilities for emotionally disturbed children on the ground that abuse of children within its care by an employee was a risk characteristic of the enterprise.

The article concludes by recommending a rule that would impose vicarious liability for employee sexual abuse “if an employer materially increases the risk of tortious action either by conferring power or authority on its employees over vulnerable persons or by regularly placing its employees in situations of intimate or personal contact with clients, customers, or other potential victims.”  This rule, Chamallas maintains, would help correct for the tendency of courts to apply scope-of-employment tests narrowly in sexual abuse cases, yet would nonetheless spare employers from liability for abuse merely coincidental to employment—e.g., a case in which a custodian employed by a bank takes advantage of his building access to molest an adult bank employee.

As one would expect from an entry into Valparaiso’s prestigious Monsanto Lecture series, there is a great deal to learn from Chamallas’s thoughtful and broad-ranging discussion. Of course, the lecture format also limits the inquiry, such that certain claims might benefit from further development.

First, more work may be required to establish the genuineness of the puzzle that animates the article. It is true that modern courts sometimes invoke facially broad tests for scope-of-employment, and have sometimes applied these tests to impose vicarious liability for employees’ intentional wrongs. Still, it may be an error to infer from these formulations, and a relatively small sample of cases, that there is a general judicial willingness to hold employers liable for employees’ intentionally inflicted injuries. After all, courts use similarly broad generalities in describing concepts such as “duty” and “proximate cause,” yet an examination of specific decisions demonstrates that, in application, these concepts are more circumscribed than first-cut verbal formulations suggest. In short, more in-depth analysis of the reasoning and results of more decisions may be necessary to establish that vicarious liability is particularly narrow in sexual abuse cases.

Second, even granting the genuineness of the puzzle, Chamallas’s explanation of the exceptional treatment of vicarious liability for sexual abuse raises some puzzles of its own. If judges’ reluctance to impose vicarious liability in these cases is explained by their cognitive biases and their reliance on stereotypes, what has permitted them to mitigate these influences in reforming rules of criminal and employment law, but not tort law?

Finally, it is worth considering whether there is a principled account of vicarious liability that would support Chamallas’s judgments about how certain sexual abuse cases should be decided, but does not turn on the sexual nature of the misconduct. Suppose a cable television technician with no history of improper conduct sexually assaults an adult woman while in her home to perform scheduled repairs. It seems likely that vicarious liability would not attach under Chamallas’s proposed rule. Yet it is not clear to me that ‘no employer liability’ is the right answer, nor that the sexual nature of the assault is critical to a proper determination of the issue. Suppose the assault were nonsexual and instead part of a robbery. For both versions of the assault, might there be a single basis for employer liability—for example, a non-delegable duty owed by the employer to its customer, given the nature of the services rendered?

However one answers these questions, Professor Chamallas is to be commended for her enlightened and enlightening analysis of the critically important doctrine of respondeat superior.

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Cite as: John C.P. Goldberg, When is Sexual Abuse Within the Scope of Employment?, JOTWELL (November 21, 2014) (reviewing Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN),