On April 26, 2017, the Seventh Circuit Court denied Home Depot’s request to reconsider its reversal of the decision to remand back to the lower court the matter of Anicich v Home Depot USA Inc., et al. Home Depot Inc. will face a lawsuit claiming that the retailer’s negligence led to a supervisor’s murdering a pregnant employee at an offsite event. The court held that the home improvement chain allowed the murderer to have supervision over the employee even after it knew he had a history of harassing female subordinates. This ruling overturned a U.S. District Court’s dismissal of the case ruling that Home Depot couldn’t have known that Brian Cooper’s verbal abuse and intimidation of Alisha Bromfield would have led to her murder in 2012. Cooper was sentenced in 2014 to two life terms without the possibility of parole for first-degree intentional homicide and third-degree sexual assault.

Home Depot had argued that the murder of Bromfield and her unborn daughter occurred off premises and that Cooper didn’t commit the crime using store property, meaning the company couldn’t be held liable for negligence under Illinois law.

But the Seventh Circuit said the employer did give Cooper something with which to harm Bromfield — his power to fire her or reduce her hours. Home Depot’s duty to monitor its managers’ conduct and Cooper’s alleged abuse of his supervisory authority to force Bromfield to join him on the trip that ended in her death could support liability, the Seventh Circuit said. An employer may be vicariously liable for the off-duty conduct of a supervisor it knows or should have known was sexually harassing the victim, the court said.  Store managers knew about the behavior, the court said, and even ordered Cooper to take anger management classes but didn’t follow up to see if he attended.

The company has an obligation under Title VII of the Civil Rights Act to discipline harassing employees, the panel said.

So what do employers need to know about hiring, supervising and retaining employees in light of the 7^th Circuit Court’s ruling?

Liability may extend outside the scope of employment to offsite events. How “far” liability extends depends on the authority one exerted, and if the harm was reasonably foreseeable. Citing Burlington Industries, Inc. v. Ellerth, the court noted that the law has moved toward holding employers vicariously liable for their supervisory employees’ intentional torts committed outside the scope of their employment but by abusing their supervisory authority, subject to an affirmative defense. To succeed on a claim for negligent hiring, supervision, or retention, a plaintiff must demonstrate that the employee’s “particular unfitness … rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position. It is not necessary that a defendant must have foreseen the precise nature of the harm or the exact manner of occurrence. Rather, it is sufficient if, at the time of the defendant’s action or inaction, some harm could have been reasonably foreseen.

Relative to the hiring process, there is also potential liability as it relates to routine back-ground checks for those applying for supervisory roles. The courts will consider the facts on a case by case basis, but if a background check indicates someone has a history of violent tendencies or other risk factors, an employer could be held liable for the negligent conduct of that employee if a court determines it was reasonably foreseeable that individual could harm another employee and the employer did nothing to intervene. Conversely, if you fail to do an employment background check on applicants for certain positions, you could be vulnerable to a negligent-hiring lawsuit by a worker who’s been hurt by a violent employee. Courts are increasingly finding that an employer has a duty of care to protect workers from injury caused by an employee who an employer knew (or reasonably could have been expected to know) posed a risk.

Bottom line, employers should continue to do their background checks, but understand that if they hire an individual with known risk factors, they are potentially on the hook for whatever is in that report.