Monday, May 5, 2014

Chamallas on Vicarious Liability in Sex Cases

Martha Chamallas (Ohio State) has posted to SSRN Vicarious Liability in Torts:  The Sex Exception.  The abstract provides:

The vicarious liability of employers for the torts of their employees is one of the most firmly established principles in the common law world. Yet in cases of sexual abuse or exploitation, U.S. courts have created an exception to the rule, applying the familiar “course and scope of employment” requirement far more restrictively. Despite growing awareness that sexual abuse constitutes a predictable risk in many workplaces, the sex exception has stubbornly persisted, even in jurisdictions that embrace new, more “liberal” approaches to vicarious liability centered on “enterprise risk.”  This article, based on the 2013 Valparaiso University Monsanto Lecture on Tort Law and Jurisprudence, examines the confusing body of U.S. cases, finding a double standard in the way courts approach sex abuse cases as compared to cases of intentional non-sexual violence. Drawing upon feminist theory, cognitive psychology and interdisciplinary scholarship on institutional culture, the article critiques the U.S. version of sexual exceptionalism and proposes a new rule that would cover the most common cases of sexual abuse.

--CJR

http://lawprofessors.typepad.com/tortsprof/2014/05/chamallas-on-vicarious-liability-in-sex-cases.html

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Comments

As an attorney that has brought many sexual abuse and assault claims over the years, I am in agreement that sexual conduct should not be subject to any standard different than that of any other alleged intentional or criminal act of an employee. I think the overall issue for liability purposes should be foreseeability that the conduct could occur.

Posted by: Glotzer Sweat LLP | May 20, 2014 2:14:54 PM

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