Georgia employers who fail to follow their own background check procedures do so that at their own peril. That is one of the lessons of Allen v. Zion Baptist Church of Braselton, a recent decision of the Georgia Court of Appeals.
The case involved sexual abuse of a minor by a church’s youth program volunteer. The church had a “child protection policy” that required youth program volunteers to “have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check.” The assailant completed an application but evidence showed that the church failed to contact his references, despite certain suspicions about the assailant. As it turned out, one of the persons the assailant listed as a reference testified that she would never have recommended him for the youth program because she was concerned he may be a sexual predator.
After the assailant sexually assaulted a member of the youth program, the child’s parents sued the church for, among other things, negligent hiring and supervision. The trial court granted summary judgment to the church on the negligence claim because it found that no evidence that the church knew or should have known of the assailant’s “propensity of proclivity to commit the criminal offense of sexual assault against a minor.”
The Court of Appeals reversed. It observed that although an employer cannot be required to “independently verify each area of possible error” on an employment application, prior Georgia case law also recognized that “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search . . . have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.” In the Allencase, the appellate court held that a fact issue existed as to the church’s negligence because it “did not contact either of [the assailant’s] references before allowing him to have unsupervised contact with members of the [church’s] youth program.” Thus, “a jury could reasonably conclude . . . not only that such a program was a ‘more sensitive matter’ requiring at least a check of references . . ., but also that had [the church] contacted [those references], [it] would have been on notice of [the assailant’s] ‘propensity to inflict physical harm which ought to have aroused suspicion and investigation.’”
Given the disturbing facts of the Allen case, the appellate court’s decision will likely upset no one. But consider itspotential implications for Georgia employers. The appellate court essentially held that an employer could be held liable for a volunteer’s reprehensible criminal act—sexual assault of a minor—because if it had followed its own background check procedures it may have learned notspecific facts about, for example, a priorcriminal conviction, but an opinionfrom a reference that may have aroused suspicion about the volunteer’s suitability. While the appellate court appeared to limit its decision to “employers who fill positions in more sensitive businesses,” that term is sufficiently nebulous to invite the holding’s extension to a whole host of employers and industries. This is particularly worrisome for employers since background checks, conducted improperly, can give rise to liability under federal employment statutes. (See, for example, this joint publication of the EEOC and FTC regarding employee background checks.) In any event, the lesson of Allenseems clear: a Georgia employer that fails to observe its own background check policies does so at its own peril.