Tuesday, May 21, 2019

You just found out you hired a sex offender. Now what?

A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

Legally speaking, it depends on the state in which you are operating. Laws that mandate state sex offender registries are more commonly known as Megan’s Law. All 50 states and the District of Columbia maintain these sex offender registries that are open to the public via websites. As of 2016, there were 859,500 registered sex offenders in United States. Some of these Megan’s Laws expressly prohibit an employer from using the state sex offender registry information for employment purposes (California, for example). Ohio’s Megan’s Law has no such requirement. Because these law do vary from state to state, you should check with your lawyer before refusing to hire, or firing, a registered sex offender.

Separately, the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII  prohibits an employer from instituting a blanket rule against the employment of anyone with a criminal history, including sex crimes. Instead, employers must make an individualized assessment of the employee’s fit for the specific job at issue in light of the criminal history, taking into consideration factors such as the facts or circumstances surrounding the offense, the length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, and the essential functions of the job. Thus, the EEOC might take issue with a blanket policy against the employment of sex offenders in all cases.

These legal limits on an employer’s ability to fire a sex offender notwithstanding, I still see liability red flags that should make you very jumpy if you are deciding whether to hire or fire someone with this background. Specifically, what happens if you choose to employ this individual, and he or she commits a sex crime while on-the-clock or otherwise relating to the employment.

First, you should be worried about liability for negligent hiring / retention. An employer has an affirmative duty to protect its employees, customers, and anyone else that comes in contact with the business from risks of harm of which the employer knows or should know. If an employer hires or retains an individual despite knowledge of prior improper behavior (i.e., sex crimes), and the employee then sexually assaults someone, that injured party could argue the employer knew, or should have known, that the employee might hurt someone. You could even face liability for punitive damages for consciously disregarding for the rights and safety of other employees. This could potentially be a very expensive mistake for an employer to learn. And, I’m speaking from experience, having defended an employer in a case with these facts.

Secondly, I can envision an argument that the employment of a registered sex offender violates OSHA’s General Duty Clause, which requires employers to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The courts have interpreted OSHA’s general duty clause to impose upon employers a legal obligation to provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine the employment of a registered sex offender violating this duty.

Separate from these legal issues that might drive you not to employ a sex offender, there are also workplace issues you’ll have to consider and manage. Since sex offender registries are mostly public, it’s not hard to envision a situation in which (1) an employee’s registration status becomes known in the workplace, and (2) it becomes fodder for gossip, discomfort, and scorn among co-workers. Not surprisingly, employees tend not to react well to news that one of their coworkers is a sex offender. They may demand you take immediate action and fire the sex offender, walk off the job in protest, or bully the sex offender into quitting. Do you want to deal with this level of discontent? Is a registered sex offender the mountain you’re willing to die on?

Thus, to address the question that started this discussion, if I’m an employer and I find out that I’m about to employ, or am employing, a registered sex offender, my decision is a relatively easy one. I’m either not hiring or firing. I’m all for rehabilitation and second chances, but in the case, let it be in someone else’s workplace.

* Image by DailyLolPics [CC BY 2.0], via Flickr