Intentional torts committed by employees are difficult for employers to both anticipate and protect against. When an employee commits a criminal act against another employee or a third party, the law generally considers whether the employer knew or should have known that the employee posed a danger in deciding whether a duty to protect against the harm was owed. However, an employee’s dangerous propensity is often difficult to predict. Employees rarely make overt criminal threats or give unambiguous indications that they intend to cause harm. Further, employers are judged in retrospect, and with the benefit of hindsight, in deciding whether seemingly innocuous comments or acts should have been taken as warning signs that the employee posed a danger.
On March 24, 2017, in Anicich v. Home Depot U.S.A., the Seventh Circuit extended the duty of Illinois employers to protect against criminal acts by an employee occurring away from the workplace, when a supervisor uses his or her “supervisory authority” to compel an employee to attend a private event under the threat of termination or job reduction. The case arose out of a supervisor’s rape and murder of a subordinate employee during a trip to attend a family wedding in a different state, when the supervisor had previously threatened to either fire or reduce the employee’s hours if she did not attend.
The supervisor was described as having a “history of sexually harassing his young female subordinates.” He had previously referred to a different female employee as his girlfriend, made inappropriate comments about her body and rubbed up against her. It was alleged that when the other female employees had complained about him, they were told that there were other complaints as well.
As to the victim, the supervisor had called her derogatory names in front of customers and had engaged in verbal outbursts, including throwing and slamming items. The supervisor had also previously called and texted the victim outside of work and had required her to go on business trips with him.
The supervisor’s joint employers had ordered him to take anger management classes. The supervisor had failed to complete a first set of anger management classes and the employers had not confirmed whether he had completed a second set of classes. However, it was not alleged that the supervisor had a history of physical violence against others or had made threats of violence.
The sexual assault and murder occurred during an out-of-state trip to attend the supervisor’s sister’s wedding. The supervisor had told the employee that if she did not accompany him, he would “fire her or reduce her hours.” Aside from that statement, no connection was alleged between the violence and the employer’s operations. Nor was it alleged that the employer had knowledge of the supervisor’s statement.
Applying Illinois law, the Seventh Circuit explained that in the employment context, employers have a duty to act reasonably in hiring, supervising and retaining their employees and that to recover for an alleged tortious breach of that duty, a plaintiff must prove that the employer knew or should have known of the employee’s unfitness for his position and that the unfitness proximately caused the injury.
The Seventh Circuit acknowledged that Illinois law had not previously extended such a duty to acts of violence occurring away from the employers’ premises, where an instrumentality of the business was not involved. However, in imposing a duty, the Seventh Circuit relied upon the fact that the supervisor had used his “supervisory authority” in threatening the employee to attend the wedding. The Court explained that the supervisor’s “threats to fire [the employee] or cut her hours were…threats to take tangible employment acts that were not carried out, because the threat worked.”
The Seventh Circuit rejected the employers’ argument that, as a matter of law, they could not have reasonably foreseen the supervisor’s criminal acts because he had never explicitly threatened physical violence and had no history of violent behavior. The Court found that it was a factual issue for the jury to decide whether or not the supervisor’s behavior was foreseeable, citing the supervisor’s prior acts of saying obscenities and throwing and slamming items in the workplace.
TAKEAWAY FOR EMPLOYERS
Employers need to have effective policies to reduce workplace violence and to communicate those policies to employees. Employees should be advised that they are encouraged to report any concerns about threatening or inappropriate behavior to their supervisors or management. Management, in turn, must act on the complaints by thoroughly investigating the concerns raised. In proving that an employer acted reasonably and responsibly, it should be able to demonstrate that it either never received any complaints about a particular employee despite having policies in place that encouraged reporting and the documenting of any such complaints, or that it thoroughly investigated any concerns raised and took appropriate remedial action in response.