Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at email@example.com.
Can a department be sued because they hire a firefighter without doing a background check, when the firefighter later turns out to be a sexual predator?
I cringe when I get a question like this, because it contains a presupposition that the primary reason we need to take certain steps is to avoid being held liable. That is seriously flawed thinking.
Let’s tackle that presupposition fallacy first. Fire departments should take reasonable steps to prevent hiring a person such as a sexual predator because otherwise the predator could have access to unsuspecting victims who depend on us to help them in their time of need. Whether or not the fire department ultimately will be held liable should be irrelevant when it comes to doing the right thing, which in this case is avoiding harm to those we have the ability to protect.
Now to answer your specific liability question. For a fire department to be held liable for hiring a sexual predator, some harm would have to occur to a third party. The mere fact that a fire department hires a sexual predator does not in and of itself create liability for the fire department. Second, the fact that the fire department hired the predator must somehow be causally connected to the harm that actually occurred. For example, the predator must have sexually assaulted the victim during his employment or while acting in his capacity as a firefighter.
It is not wise to use liability as the sole guiding principle when trying to determine the right course of action.
Assuming the sexual predator firefighter did in fact prey upon a victim while performing his duties, the victim may have an uphill battle to hold the fire department liable. The most common way an employer can be liable for the acts of its employees is through a legal theory known as respondeat superior (master-servant rule). Under this theory an employer can be held liable for the acts of its employees committed within the scope of their employment. It is unlikely that the fire department could be held liable under this theory because a sexual assault would not be within the scope of a firefighter’s job duties.
While admittedly there have been cases where employers have been held liable for sexual assaults committed by employees under the respondeat superior theory, the more common outcome is that sexual assaults committed by employees are outside the scope of the employee’s duties (see MP v. City of Sacramento, 177 Cal. App. 4th 121 (CA App. 3rd 2009)).
The next theory of liability for the fire department to be held liable is negligent hiring. To prevail the victim would have to prove to prove that:
- The fire department somehow had a legal duty to conduct a background check
- A background check would have discovered the firefighter’s history as a sexual predator
- The fire department breached its legal duty by not conducting the background check
- The breach of the duty was the proximate cause of the sexual assault on the victim
The problem is, some sexual predators have no criminal background and thus the mere conducting of a criminal background check would not necessarily have prevented the assault. In addition, some states and the U.S. Equal Employment Opportunity Commission (EEOC) have limitations upon the use of background checks that may work to the advantage of those with a criminal past. As a result, it may not be all that easy for a victim to prove that the fire department had a legal duty to conduct a background check, breached that duty, and was the proximate cause of the sexual assault.
A third option for a victim to sue the fire department might involve alleging a civil rights violation, but that would likely be the weakest of the three liability options. As if all this were not enough, the fire department would have a number of defenses that could be raised, not the least of which would be sovereign immunity and the public duty doctrine. Suffice it to say it would not be a slam dunk for a fire department to be held liable for hiring a sexual predator even if the predator committed a sexual assault while on duty.
That brings us back to my original point. It is not wise to use liability as the sole guiding principle when trying to determine the right course of action. Liability tracks harm. Prevent the harm and you prevent the risk of liability. The focus of leadership needs to be on preventing preventable harm from occurring irrespective of liability concerns.
To paraphrase Gordon Graham, if it is predictable harm it is preventable harm. Fire service leaders should take reasonable steps to protect those who rely upon the services we provide whether or not failing to do so will create liability for the department.
Related: View the on-demand webinar on background checks in public safety with Gordon Graham and Rich Henderson.