ABSTRACT
Historically, most courts have refused to impose vicarious liability on employers for sexual assaults inflicted by their employees, applying the traditional view that sexual assaults are outside the scope of employment because they do not further the interests of the employer. However, in the past few decades, the tide has turned, with many courts allowing cases to go to the jury, although no single theory has emerged to ground recovery. This Article showcases a new provision of the Restatement of Torts that authorizes vicarious liability in cases in which an employee with ‘substantial power, authority, or influence’ sexually assaults a ‘particularly vulnerable’ person. Embracing an approach to vicarious liability centered on abuse of institutional power, the philosophy behind the Restatement provision trades on feminist understandings of sexual oppression as stemming from an imbalance of power and uses the construct of vulnerability to describe a class of persons who are most at risk of victimization.
The new provision directly furthers the goals of gender equality and social justice by responding to chronically high rates of sexual abuse in our society and the dramatic underutilization of tort law as a remedy. It aligns with developments in civil rights law that have imposed vicarious liability on employers for sexual abuse by supervisory employees. Potentially reaching cases of wrongdoing by police officers, doctors, teachers, immigration officers, clergy, and other professionals, the provision would provide protection for marginalized groups such as women, minorities, and LGBTQ individuals who are disproportionately the victims of sexual assault.
The Article defends an interpretation of the new provision that would reach informal as well as formal abuses of power and instances in which the sexual assault follows a familiar script of abuse of trust in relationships marked by customary deference to authority. It explains how the provision embodies a structural view of vulnerability that relies not on an abstract assessment of individual traits but on the interaction of power and vulnerability within an institution, including a realistic assessment of a person’s likely ability to resist and protect themselves. It explores the justification for limiting the scope of the new provision to sexual assaults and the possibility for expanding the approach to cover all intentional batteries, including those based on race and against vulnerable individuals more generally.
Chamallas, Martha, Power and Vulnerability in the Torts Restatement: Vicarious Liability for Sexual Assault (October 7, 2026), Ohio State Legal Studies Research Paper No 987; forthcoming in Wake Forest Law Review.
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