Geistfeld on Vicarious Liability for Sexual Assaults in the Workplace

Mark Geistfeld has posted to SSRN Reformulating Vicarious Liability in Terms of Basic Tort Principles:  The Example of Employer Liability for Sexual Assaults in the Workplace.  The abstract provides:

The most common form of vicarious liability subjects an employer to liability for the torts an employee commits within the scope of employment. Under the motive test, an employee’s tortious misconduct is outside the scope of employment when wholly motivated by personal reasons—a rule that almost invariably prevents the victims of sexual attacks at the workplace from recovering against the employer. The motive test is based on agency law, not tort law. A few alternative approaches have reformulated vicarious liability in a different manner, but each one has largely foundered. The motive test rules the land.

Neither courts nor commentators have adequately considered whether vicarious liability can be reformulated as a tort doctrine that makes the employer (or principal more generally) legally responsible for the employee’s (or agent’s) conduct. As a matter of tort law and not agency law, responsibility is ordinarily defined by the requirements that the individual’s affirmative conduct (feasance) created a foreseeable risk of physical harm. In cases of vicarious liability, these two essential requirements for attributing individual responsibility to an employer for the conduct of an employee are satisfied whenever the employee acts to further some interest of the employer. The employer’s tort responsibility can extend beyond the agency relationship to encompass some forms of employee misconduct that have no purpose of furthering the employer’s interests, as in certain cases of sexual misconduct at the workplace. Since this formulation of vicarious liability relies on the ordinary tort principles concerning feasance and foreseeability, it does not require courts to engage in any kind of inquiry different from ones already embodied in ordinary negligence liability.