What 3 things do Bill O’Reilly, Roger Ailes, Bill Cosby and Harvey Weinstein all have in common? Answer: They are (1) rich (2) powerful (3) sex offenders. Some might want to add Donald Trump or Bill Clinton to the list, but let’s stay clear of politics.
The truth is that many powerful men are sexual predators. But so too are many not-powerful men. In fact, poor men may be even more prone to committing sexual assaults. That’s because, in the words of Janice Joplin, “when you ain’t got nothing, you got nothing to lose”. The guys at the top of society’s pyramid have a lot to lose. It’s a long fall to the bottom. The guy who is already down low has nowhere to fall.
Then again, maybe sexual assaults have nothing to do with money. When I went to college in the 70’s many feminists embraced this adage: “All men are pigs”. I think this a very unfair statement. I mean unfair to pigs. As far as I know, pigs don’t rape and harass their mates.
Well, guys, let’s face it; there are many sex “hogs” among us. Go back through history. You will see that it was a given that invading armies would “rape and pillage” when they took a town or city. Notice that “rape” always comes first in that phrase.
Thankfully we live in more enlightened times. Now women can not only press criminal charges, but also sue the offenders for money damages.
When it comes to suing sex offenders, there’s a big difference between suing the rich and powerful versus suing the poor schmuck with nothing but a GED and a job at Wendy’s. The difference stems from the fact that the rich pig has money and the poor pig does not. Suing a poor sex offender is like trying to get water from a rock. That’s why lawsuits against a poor assailant doesn’t make any sense. To get any recovery at all when you are assaulted by a poor offender, you are better off if he was on the job when he chose to assault you. For example, if a pizza delivery guy assaults you, you may be able to sue the pizzeria employer, who would have insurance or deep pockets.
But an employer is not automatically liable for the sexual (or other) assaults committed by its employees while on the job. That’s because there is generally no “vicarious liability” for intentional torts. However, if you can show that the employer knew or should have known that the employee had committed sexual offenses in the past, but that the employer hired him or retained him anyway, then the employer may be guilty of “negligent hiring” or “negligent retention”.
Take the O’Reilly case as an example. He was fired after it came to light that 21st Century Fox, his employer, had paid out about $13 million to five women who claimed they had been sexually assaulted or harassed by him. And just this week we learned about another settlement, which Riley himself had paid out: $32 million for a single victim. Fox admitted that it renewed O’Reilly’s contract right after O’Reilly had settled this last claim. Fox defended its decision to keep O’Reilly on because he had “settled the matter personally”. The company also defended its decision by pointing out that O’Reilly’s new contract allowed Fox to dismiss him if “other allegations” surfaced.
But this contractual provision does nothing to protect Fox from liability. The women O’Reilly raped or groped or pressured for sex can sue Fox based on a theory of negligent retention. Fox clearly knew what O’Reilly was up to but they nevertheless renewed his contract, thus giving him the opportunity to rape or grope and harass again and again.
If a victim of O’Reilly’s assaults is also employed by Fox, her claim would be brought under Federal and State Statutes that protect women and other minorities from a “hostile work environment”. If the victim is not employed by Fox, then the claim against Fox would be for negligent hiring, retention and/or supervision.
The claim for negligent hiring or retention is pretty much the same regardless of the type of assault. For example, if a pizza delivery guy delivers a pizza to your home and then punches you in the face because your tip was too small, you can sue the employer for negligent retention or hiring and will likely prevail if the employer knew or should have known about prior assaults or threats. In this sense, an assault is an assault, whether the assailant employs his fist or his penis.
I am very grateful to live in an era when sexual assaults on women are redressed not just by criminal sanctions, but by money lawsuits. Pigs who assault women should be not only caged, but also bled dry.
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