Firing Convicted Sex Offender, Quirky Question # 148
Quirky Question # 148:
Here’s a question that you may have addressed in the past. Unfortunately, the situation arises periodically and we’re still not sure how to handle it.
We recently learned that one of our employees is a convicted sex offender and is registered with a state agency as such. We want to terminate his employment. Will we be risking liability if we do so?
You are correct that this is a question that we previously have addressed on this Blog. Use the “View By Topic” bar and scroll down to the topic, “Registered Sex Offenders.” There, you will find a thoughtful analysis by our colleague Jessica Linehan of our Southern California office (Quirky Question # 51) on just this issue. As Jessica pointed out in her prior analysis, the situation involving registered sex offenders in California is complicated by the fact that the CA version of the Megan’s Law statute precludes the use of the sex offender information for employment decisions, except in limited circumstances.
Set forth below are a few thoughts for your consideration.
First, as Jessica’s analysis illustrates, it is critical for you to consider how this issue has been treated by the legislature and the courts in your state. Although states were required to adopt a sex offender registry, the state legislation on this subject is not uniform. California built in extra protections for the employees on the offender list when it comes to employment decisions. Other states have not added this statutory gloss. The bottom line is that this area, like so many other aspects of employment law, requires a careful review of the obligations imposed on employers in multiple jurisdictions.
Second, as you know, not only do the state statutory schemes differ; so too do the judicial decisions regarding this issue. Therefore, to understand your company’s rights in a particular state, you need to review both the statutory scheme for the state in question and the decisions from that state’s courts. To the extent that your company is a national employer, with operations in multiple states, it may not be possible for your company to have a uniform policy nationwide.
Third, there are a number of claims that an employee may be able to bring based on a discharge stemming from the company learning an employee is a registered sex offender. Likewise, there are a number of different defenses that may be applicable, depending on the individual facts of a particular case. I will highlight a few of the most likely legal claims.
Employment Discrimination: As with most employment claims, the first issue that must be explored is whether there are any statutory protections upon which the employee could rely. For example, will the discharged employee be able to make out a discrimination claim – gender, race, age, disability or other? As you likely know, the key to any discrimination claim is differential treatment – was this employee treated differently than other similarly situated employees. By way of illustration, if you employed several male employees who were on the registered sex offender list, but fired a woman who was on the list, or if you employed several Caucasian employees on the list, but fired an African American employee on the list, barring other identifiable differentiating factors, this behavior is potentially problematic. A company that engaged in the conduct I’ve described would have to articulate persuasive reasons for why the situations of the comparator employees are different and distinguishable.
Breach of Contract: Another source of employment claims is the contractual agreement between employer and employee. If the person in your employment has a contract specifying a term of employment, and/or specifying the grounds upon which the employee could be discharged, you should examine this contract language carefully. The language may afford the employer or the employee additional rights relating to discharge. For example, if discharge were limited to “for cause” terminations, you would need to understand whether the conduct involved fell within the definition of “cause” under the contract. This analysis could be somewhat problematic if the employee had worked for you for a number of years without problems.
Quasi-Contract Claims: Yet a third type of potential claim is a quasi-contract claim, such as promissory estoppel. Let’s assume that the employee disclosed his or her past problems that resulted in his/her inclusion on the registered offender list and the company decided to hire him/her anyway. If promises were made by the employer, and the employee relied on those promises to his/her detriment, the employer may be estopped (or prevented) from reneging on those promises.
Tort Claims: An employer evaluating risk with respect to this issue should carefully consider potential tort claims. Two in particular warrant attention and they relate principally to the time period when the employee first joined the company and when he or she was discharged. As to the former, the risk is of an intentional or negligent misrepresentation claim. Did the employee disclose the past problems and what did the employer state regarding the significance, if any, of these past problems? Were assurances made to the employee that these problems, especially if they occurred years before, would not adversely affect the individual’s employment? As to the latter, what did the employer state at the time of the discharge? Here, the risk is of a defamation claim. It is imperative to ensure that only truthful information is conveyed, without embellishment or elaboration.
As the discussion above illustrates, there are some potential risks associated with discharging an individual on a registered sex offender list solely because he/she is on such a list. But, those risks are reduced significantly if the employee concealed the past criminal behavior that resulted in his/her inclusion on the list. It is critical in these contexts to review carefully the application submitted by the employee, particularly information relating to convictions (if any). To the extent the employee was forthright about the past conduct, the company’s position with respect to a desired discharge will likely be weakened. To the extent information about prior criminal convictions was sought and concealed, an independent ground likely will have been created for the desired discharge decision, i.e., the employee lied on his/her application.
Fourth, a separate issue the company should consider carefully is the nature of the job the individual is being asked to perform, or has been performing. Does the employee come in contact with members of the public? Does the employee have any interaction with vulnerable individuals, whether adults or children? What is the nature of the employee’s interaction with co-workers, e.g., does he/she have to travel with co-workers? If any of these questions are answered affirmatively, further inquiries are appropriate to ensure that the employer fully understands the potential risks associated with a claim for negligent hiring, retention or supervision. Here, the employer needs to understand, at a minimum: a) when the conduct occurred (i.e., how long ago was it); b) what was the nature of the conduct; c) did the conduct involve a single or multiple offenses; d) how old was the employee when the behavior took place (e.g., was he/she a 16 year-old interacting with a 15 year-old, or was he/she an adult interacting with a younger individual); e) what punishment was imposed (treatment, incarceration, both, other); and, f) what are the risks of recurrence (to the extent that issue can be analyzed). These and other issues may bear an employer’s assessment of potential risks to injury to others, along with the corresponding risks of litigation from one of those injured parties. In some circumstances, you will be assessing whether you would rather defend a claim from the registered sex offender or a member of the public injured by that individual. For me, that’s an easy call.
Note, however, that while the sex offender registries serve an extremely useful societal purpose, there sometimes are situations where individuals are included on the lists unfairly. These situations are periodically highlighted on TV shows like “60 Minutes” or “48 Hours” and can raise doubts about the efficacy of the lists, at least in part. And while my personal presumption would be that the lists have validity and are largely accurate, an employer would be prudent to ascertain whether the situation involving its employee is atypical for any reason.
Fifth, there is a complicated internal and external PR issue that employers cannot ignore. If it becomes widely known within a company that an existing employee is a registered sex offender, that person’s effectiveness within the company may be forever compromised. Similarly, if this information were disclosed in a public forum, such as to a customer, these problems could be exacerbated significantly. I cannot propose any simple solutions in a situation like this. All I can recommend is that the employer carefully evaluate all of the relevant facts and make the most reasoned and thoughtful judgment possible when assessing the totality of the circumstances.
Finally, recognizing that these situations implicate some difficult judgment calls, you can take some comfort from the fact that, generally, courts are not too receptive to protecting the rights of a convicted, registered sex offender. This background fact often can be outcome determinative in litigation, usually with positive consequences for employers who have elected to discharge someone who is a registered offender.