Employer Not Liable for Failing to Do Background Check on Employee Who Raped Coworker

Kollman & Saucier
Kollman & Saucier

A federal appellate court has ruled that the employer of a woman raped by a co-worker is not liable for negligent hiring when it failed to conduct a background check on the co-worker, even though the employee had prior convictions for sexual crimes.  Keen v. Miller Environmental Group, _F. 3d. _ (5th Cir. 12/10/12). The court held that Mississippi law did not impose a generalized duty to conduct background checks, regardless of whether the employer failed to comply with its own internal policy.

The case arose out of the hiring of Rundy Robertson by Miller and Aerotek, a contractual staffing agency that supplied Miller with labor.  Robertson was hired as a laborer to remove tar balls from the Gulf Coast after the Deepwater oil spill in 2010.  Despite internal policies requiring criminal background checks on new hires, neither Miller nor Aerotek conducted a background check.  Had one been done, it would have shown that Robertson had been convicted of robbery, cruelty to a child, and contributing to the delinquency of a minor, a conviction which required him to register as a sex offender.

In June 2010, Robertson’s co-worker Deborah Keen fell ill at work. Robertson drove her home, where he proceeded to rape her. Though he was not indicted, Keen sued Aerotek and Miller for negligent hiring.  The trial court dismissed her claim, and Keen appealed to the United States Court of Appeals for the Fifth Circuit.

On appeal, the Fifth Circuit held that neither Miller nor Aerotek had a duty to conduct a criminal background check in this instance. As stated by the court, “if a criminal background check were necessary to screen for indicia that a manual laborer might assault a co-worker, it is difficult to envision a fact pattern where a background check would not be necessary… there is no generalized duty on employers to conduct pre-employment background checks on all new hires, irrespective of the particular circumstances of their prospective employment.”

The Keen decision is an important victory for employers.  With the EEOC  and many state and local governments placing new limits on the use of pre-employment screens in hiring decisions, employers find themselves between the proverbial “rock and a hard place” when it comes to background checks. The Keen decision gives employers a legal basis not to conduct a background check when there is no obvious reason to suspect that the new hire is in a position where he or she could easily cause harm to others.


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