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Fall 2006-12 Employer's vicarious liability for sexual harassment

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Number 65
Fall 2006

Employer's vicarious liability for sexual harassment

In Hernandez v. Televicentro, 2006 T.S.P.R. 142, the Puerto Rico Supreme Court addressed the question of an employer's potential vicarious liability for omission of disciplinary actions to prevent subsequent sexually harassing conduct.

The script

Let's assume that you manage a television station and one of your cameramen makes harassing sexual advances (including indecently exposing himself) to an employee of an independent contractor that you retain to produce one of your shows. Let's also assume that there was a prior incident where the same cameraman had made a lewd pass at a makeup lady, who later qualified the incident as a misunderstanding. After a quick investigation of the incident, your director of human resources and you decide to send a letter informing the cameraman of your harassment-free workplace policy.

Could or should you have foreseen, by virtue of the sexually charged incident later taken as a misunderstanding, the very serious acts perpetrated by your employee against the employee of the independent contractor? Are you, as the cameraman's employer, to be held responsible for his lewd and indecent acts?

The law

Puerto Rico Civil Code article 1803 provides that owners or directors of an establishment or enterprise are liable for any damages caused by their employees in the course of employment. This responsibility for someone else's acts is what is called "vicarious liability."

The ruling

The Supreme Court ruled in Televicentro that a series of elements must be present in order for vicarious liability to exist, as required by article 1803. These include that the conduct or acts be carried out with the purpose of serving and protecting the employer's interests and objectives. The Court held that even in the hypothetical case that you would have carried out disciplinary procedures for the prior incident, the cameraman's actions under scrutiny were in no way foreseeable. That, coupled with the fact that the employee had never been singled out as a person likely to commit acts of this nature, lead it to conclude that the defendant did not incur in an omission that brings about vicarious liability.

The dissenting opinion

The dissenting judges in this case opined that Televicentro was liable by omission, for failing, in spite of its anti-harassment policy, to act in a reasonable way in order to prevent the damages caused by the cameraman to the plaintiff. Faced with a violation of the company's norms, the dissenting opinion expresses that the employer merely communicated to the offender that he could not again incur in such conduct. It is the duty of every employer not only to anticipate damages, but also to prevent that these occur, when it is reasonably foreseeable. Therefore, as a result of said omission, it was reasonably predictable, the two dissenting judges continued, that such regrettable events would eventually take place. In view of this, the employer should have been held accountable for its omissions and the damages resulting from them.


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