Editor’s Note: This is the fourth of seven articles covering a story based on the author’s involvement as an expert witness in a Florida court case. Read the first article in the series.
By Dr. Gary Deel, Faculty Director, School of Business, American Military University
This case involved a mentally disabled minor who was sexually assaulted by an Orlando, Florida hotel employee. Ivan, a hotel security officer, forced Jack, a 17-year-old boy with a mental disability, into an unoccupied hotel bathroom and committed an act of sexual assault and battery.
Ivan was ultimately arrested and sentenced to jail time with monetary penalties and community service. But none of this did anything to help Jack, so Jack’s family hired attorneys to file a civil suit against the hotel for negligence. This is when I became involved in the case.
The question was whether the hotel should bear any responsibility for what happened to Jack. We felt the answer was unequivocally yes. Among the several theories of liability that were explored, the first was that of negligent hiring or negligent employment. If the hotel had any good reason to believe Ivan might be prone to this kind of conduct — through Ivan’s hiring process or through interactions with him on the job — this would show that the hotel had actual or constructive notice of the danger he presented to guests and others.
Subpoena for Ivan’s Hiring Documents
Our first step was to subpoena Ivan’s hiring documents, including his job application, resume, interview forms, and background check information. Essentially, Jack’s attorneys wanted to see if there was anything in Ivan’s file that indicated a propensity for sexual misconduct or other criminal behavior. A review of the documents revealed no such indications. Ivan’s criminal background check came back clean when he was hired.
The hotel had opted not to conduct a credit check on Ivan. The use of credit checks is actually controversial. Advocates of credit checks argue that a poor credit history may suggest a propensity for theft motivated by financial desperation. Opponents argue that credit checks make an unfair presumption that can lead to forms of illegal discrimination against protected classes.
In any event, even employers who use credit checks would normally use them only for employees who regularly work with cash or other valuables. So it was not surprising that as a security officer Ivan would have been excluded from a credit check.
Did the Hotel Contact Previous Employers?
We asked the hotel management if Ivan’s prior employers had been contacted as part of the consideration process. They stated that they had. Nevertheless, we contacted them ourselves just to be sure. Employers are generally not obligated to provide details about a prior employee’s work history. They are usually reluctant to do so for fear of committing defamation by divulging private or misleading information. Most employers are only willing to confirm whether an individual was in fact once an employee, and that person’s job title and dates of employment.
We could have had subpoenas issued for any other relevant information that past employers might have. But such subpoenas would undoubtedly have been challenged, and they would be difficult to defend. The whole purpose of this line of investigation was to determine what the hotel might have learned, or had the opportunity to learn, by speaking with Ivan’s previous employers.
Therefore, any information that Jack’s attorneys could have acquired through subpoena would be irrelevant if it wasn’t information that the past employers would have freely shared with the hotel when they were called about Ivan. As such, Jack’s attorneys stuck to politely asking Ivan’s past employers whether they’d had any behavioral problems with him. As expected, all declined to comment.
Deposing Human Resources
Jack’s attorneys also deposed the human resources representative who was responsible for interviewing and hiring Ivan. Ivan was hired approximately eight months before the incident with Jack occurred, so the human resources employee’s memory of her time with him was fuzzy. But from what she could recall, there was nothing of particular interest or concern about him.
This was not unexpected either. After all, if Ivan had said or done anything to give her the impression that he was someone who might be prone to sexual misconduct, he very likely would not have been hired in the first place.
Next, Jack’s attorneys subpoenaed Ivan’s personnel file and deposed several of his coworkers. They included his immediate supervisor, his trainer, and a few security officers with whom he worked closely. The personnel file showed no history of any disciplinary concerns. Ivan did not appear to have been coached or counseled on any behavioral problems at work.
As for his coworkers, they all generally reported that Ivan was a quiet person who mostly kept to himself; he was a reliable security officer who followed directions and did his job as instructed. Ivan’s trainer shared that his onboarding experience was fairly typical; he learned quickly and performed well on the job. No one could recall ever seeing Ivan behave in any inappropriate or untoward way.
Lack of Evidence to Support Negligent Hiring
So the theory of liability based upon negligent hiring or negligent employment seemed to lack evidentiary support. But of course, at one point or another every criminal — even the most hardened and depraved — commits his first crime, or at least the first one where he was caught. The fact that Ivan didn’t have a suspect history didn’t necessarily mean that the hotel was completely free of accountability for what happened to Jack.
In the next article in the series, I will examine how Jack’s attorneys looked to the hotel’s duty to maintain a safe environment for guests as an alternate theory of liability.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a JD in Law and a Ph.D. in Hospitality/Business Management. He teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others. To contact the author, email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.