Can an employer be liable for covering up a sexual assault?

The Supreme Court of California recently dealt with a case arising from a former student’s complaint alleging that an employee at her high school committed sexual abuse, sexual harassment, and intentional infliction of emotional distress.

The Los Angeles Unified School District – the defendant in the case of Los Angeles Unified School District v. The Superior Court of Los Angeles County – operated Daniel Pearl Magnet High School, where the plaintiff was a student.

In February 2014, the school district allegedly learned that the employee, then working as an aide at a different school within the district, had a “boyfriend-girlfriend” relationship with H.M., a female student. Instead of terminating the employee, the school district transferred him to Daniel Pearl Magnet High School and allegedly created a false report stating that the employee and H.M. met and dated before it hired him.

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In November 2014, the employee allegedly sexually assaulted the plaintiff when she was in her ninth grade. Before that, he allegedly gave her special attention, acted affectionately toward her at school, held her hand, rubbed her legs, and sent her flirtatious and sexual text messages.

The plaintiff later told her parents, who informed the police. This led to the employee’s arrest in May 2016 and the filing of criminal charges associated with his misconduct.

The plaintiff’s complaint made the following allegations:

• The school district acted negligently and failed to report suspected child abuse
• The false report in 2014 represented an effort to cover up the employee’s sexual assault of minor students within the school district and led to the sexual assault of the plaintiff that year
• The employee acted improperly toward other female students at Daniel Pearl Magnet High School
• A student told the school administration that the employee inappropriately touched her
• The school district, after learning about the employee’s alleged misbehavior, let him stay at the school, where he groomed the plaintiff and eventually sexually abused her

The plaintiff requested economic and noneconomic damages, punitive and exemplary damages from the employee, and up to treble damages under section 340.1(b)(1) of California’s Code of Civil Procedure from the school district.

Section 340.1(b)(1)), which applies if a plaintiff files a tort lawsuit based on childhood sexual assault and successfully proves that the assault occurred as a result of a defendant’s cover-up, provides for up to treble damages, meaning that a winning plaintiff gets actual compensatory damages multiplied by three. Section 340.1(b)(2) defines a cover-up as a concerted effort to hide evidence about childhood sexual assault.

The school district filed a motion to strike the request for up to treble damages and the complaint’s parts alleging a cover-up. It cited section 818 of the Government Code within California’s Government Claims Act. This provision states that a public entity is not liable in tort for damages imposed primarily for the purpose of serving as an example or punishing the defendant.

The trial court denied the school district’s motion to strike. Section 340.1(b)(1)’s treble damages provision was meant to be compensatory, not punitive, the trial court said.

Employer need not pay enhanced damages

The California Court of Appeal ordered the trial court to grant the school district’s motion to strike the treble damages request and the related allegations. The appellate court made the following findings:

• The purpose of section 340.1(b)(1)’s treble damages provision was primarily punitive, not compensatory, because it aims to punish past childhood sexual abuse cover-ups to deter future ones
• While this was a worthy public policy objective, the Government Claims Act did not waive sovereign immunity for this purpose
• Section 818 protects public entities like the school district from liability for enhanced damages under section 340.1(b)(1)
• There was no evidence of the plaintiff suffering an injury from a childhood sexual assault or from a cover up that would require enhancing the damages that she would receive

The Supreme Court of California issued a decision affirming this decision. It agreed with the appellate court that section 818 shields public entities from enhanced damages under section 340.1(b)(1). The Supreme Court read section 340.1 and section 818 together and concluded that there was no intent to make section 340.1(b)(1) apply to public entities.

“The majority rule in the United States long has been that public entities are not liable for punitive damages arising out of the acts or omissions of their employees, at least without a clear expression of contrary legislative intent,” wrote Chief Justice Patricia Guerrero for the Supreme Court.

The legislature could, in the future, consider changing the law if it believed that public entities should potentially be subject to liability for enhanced damages when a cover-up led to childhood sexual assault, the Supreme Court noted.