Suppose that during regular work hours, an employee of XYZ Co. commits a sexual assault or other violent attack upon a member of the public. The employee, of course, is liable for the intentional tort of battery (about which you learned in ( Chapter 6), as well as a criminal offense. Although the doctrine of respondeat superior makes employers liable for their employees’ torts when those torts are committed within the scope of employment, XYZ is quite unlikely to face respondeat superior liability for its employee’s flagrantly wrongful act because a sexual assault or violent attack, even if committed during regular work hours, presumably would be outside the scope of employment.
However, as the principles explained in this chapter suggest, XYZ could be liable for its own tort if XYZ was negligent in hiring, supervising, or retaining the employee who committed the attack. A determination of whether XYZ was negligent would depend upon all of the relevant facts and circumstances.
Regardless of whether XYZ would or would not face legal liability, the scenario described above suggests related ethical questions that may confront employers. Consider the following:
Does an employer have an ethical obligation to take corrective or preventive action when the employer knows, or has
reason to know, that the employee poses a danger to others?
- Does it matter whether the employer has irrefutable evidence that the emplovee poses a danger. or whether the employer has only a reasonable suspicion to that effect?
- Does it matter whether the employer has irrefutable evidence that the employee poses a danger, or whether the
employer has only a reasonable suspicion to that effect?
- If the employer has an ethical obligation to take corrective or preventive action, to whom does that obligation run and what should that obligation entail?
- Does the employer owe any ethical duty to the emplovee in such situations?
You may find it helpful to consider these questions through the frames of reference provided by the ethical theories
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