By Joseph A. White
Georgia employers who fail to follow their own background check procedures do so that at their 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 employee’s application, prior Georgia case law also recognizes 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 Allen case, the appellate court held, 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 this case, the defendant church will likely garner little sympathy from anyone. But consider the flip side: with its decision, the appellate court.