Martha Chamallas, ‘Vicarious Liability in Torts: The Sex Exception’

The vicarious liability of employers for the torts of their employees is one of the most firmly established principles in the common law world. Yet in cases of sexual abuse or exploitation, US courts have created an exception to the rule, applying the familiar “course and scope of employment” requirement far more restrictively. Despite growing awareness that sexual abuse constitutes a predictable risk in many workplaces, the sex exception has stubbornly persisted, even in jurisdictions that embrace new, more “liberal” approaches to vicarious liability centered on “enterprise risk.” This article, based on the 2013 Valparaiso University Monsanto Lecture on Tort Law and Jurisprudence, examines the confusing body of US cases, finding a double standard in the way courts approach sex abuse cases as compared to cases of intentional non-sexual violence. Drawing upon feminist theory, cognitive psychology and interdisciplinary scholarship on institutional culture, the article critiques the US version of sexual exceptionalism and proposes a new rule that would cover the most common cases of sexual abuse.

Chamallas, Martha, Vicarious Liability in Torts: The Sex Exception (May 2, 2014). Valparaiso University Law Review, Vol 48, No 133, 2014; Ohio State Public Law Working Paper No 244.

First posted 2014-05-05 06:22:35

Leave a Reply