Employers are liable for the negligent acts/omissions of their employees that occur during the course and scope of employment. This type of liability is referred to as “vicarious liability.”
Generally, activities of an employee that are purely personal in nature and outside the scope of the employee’s job duties (e.g., sexual interactions with a student) do not give rise to vicarious liability on the part of the employer. An employee who has inappropriate sexual interaction with a student (e.g. sexting, improper touching, etc.) would usually be held to be outside the course and scope of his/her employment and therefore vicarious liability would not be imposed on the employer. However, the employer may have direct liability for its own negligent acts/omissions if it knew or should have known of the risk and failed to take reasonable steps to prevent it or stop it.
Also, an employer who hires an employee who later causes harm to a student could face liability for “negligent hiring” if the employer knew or should have known (e.g., from references, background check, etc.) that the employee posed an unreasonable risk of harm to students. Similarly, when an employer who continues to employ a faculty member after being put on notice that the faculty member poses a risk of harm to students, the employer may be held liable for “negligent retention” in the event that the faculty member causes such harm.
Therefore, when there is cause to believe that a faculty member has engaged in inappropriate interactions with a student, it is important to thoroughly investigate the situation to determine whether the continued employment of that faculty member poses a risk of harm to students and a risk of liability to the school (and to take appropriate action if warranted).
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.