concurring in part and dissenting in part:
I concur in the majority’s recognition of plaintiff’s cause of action for negligent retention; however, I dissent from that portion of the opinion which allows plaintiff a cause of action for negligent hiring premised upon the failure to investigate for prior instances of sexual harassment based solely on the existence of a mixed-gender workplace.
I agree with the majority conclusion that plaintiff’s allegations addressing defendant’s failure to redress her complaints of sexual harassment were sufficient to state a cause of action for negligent retention. Negligent retention occurs “ ‘when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigation, discharge or reassignment.’ ” (Foster v. Loft (1988), 26 Mass. App. Ct. 289, 291, 526 N.E.2d 1309, 1311, quoting Garcia v. Duffy (Fla. Dist. Ct. App. 1986), 492 So. 2d 435, 438-39.) Taking all well-pleaded allegations in plaintiff’s complaint as true and viewing them in a light most favorable to plaintiff, as we must for the purposes of a section 2 — 615 motion to dismiss (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615; Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100-01), I agree with.the majority conclusion that plaintiff alleged a claim based on the company’s failure to act after being placed on notice of an employee’s sexual harassment of her.
Turning now to plaintiff’s claim for negligent hiring, I must state at the outset.that I consider the majority’s attempt to fashion an additional means to redress the serious problem of workplace sexual harassment an excellent objective. I am concerned, however, with the creation of a rule of law that imposes on employers an affirmative duty to investigate all prospective managerial and supervisory employees for prior instances of sexual harassment based solely on the existence of a mixed-gender workplace. Although the majority states that the opinion falls short of declaring a specific duty to investigate potential management employees’ sexual harassment history, I interpret the opinion as doing precisely that. Setting aside considerations of actual and proximate cause, as I read the majority opinion, an employer’s mere failure to conduct a background investigation of prospective managerial or supervisory candidates concerning their propensities towards sexual harassment will result in a breach of that duty, thus subjecting the employer to liability. Carried to its logical extreme, I view the majority’s creation of such a duty as opening the door to imposing on employers a multitude of affirmative duties to conduct background investigations to expose various character traits or propensities of prospective employees regardless of their contemplated position in the hierarchical structure and without consideration of the particular circumstances of the workplace or exigencies of the particular employment. It is foreseeable that complex issues of privacy would ultimately be implicated in such a process and that employers’ efforts to respect the proper scope of preemployment inquiries, already limited by privacy concerns, would become even more difficult. For the reasons that follow, it is my opinion that (1) the existing body of negligent hiring cases does not support the creation of such a duty; (2) the absence in this State, and the express denunciation by other jurisdictions, of the imposition of a per se affirmative duty to inquire concerning prior instances of criminal conduct by prospective employees suggests that the imposition of an affirmative duty to investigate all prospective management employees for prior instances of sexual harassment is unwarranted; and (3) the focus of the analysis in such cases should be directed to the breach aspect of the tort rather than the creation of an affirmative duty to investigate.
As originally conceived, a common-law cause of action for negligent hiring/retention was devised as an exception to the common-law fellow-servant doctrine. The fellow-servant doctrine absolved an employer of liability to one engaged in his employment for injuries incurred because of the carelessness or misconduct of others also employed by that employer and who were engaged in the same general employment as the injured employee. (53 Am. Jur. 2d Master & Servant §295, at 327 (1970).) An exception to the fellow-servant rule was recognized, however, in cases where an employer was negligent in employing incompetent co-employees. (See, e.g., Western Stone Co. v. Whalen (1894), 151 Ill. 472, 484.) The result of this exception was not to impose a form of imputed liability on employers for the actions of their employees against fellow employees, but to recognize a direct cause of action by an injured employee against an employer for its failure to exercise reasonable care in the selection of careful and skilled co-employees (Western Stone, 151 Ill. at 485). As early as Western Stone and before, courts wrestled with the problem of what precisely was the exercise of reasonable care in such cases. See Western Stone, 151 Ill. at 484.
As the rule evolved in Illinois, and other jurisdictions (see Ponticas v. K.M.S. Investments (Minn. 1983), 331 N.W.2d 907, 910 (list of citations)), actions predicated on direct employer liability for failure to exercise reasonable care in the selection and retention of employees expanded the scope of the employer’s duty to encompass not only injured co-employees but nonemployee third parties as well (see, e.g., Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 931-32 (employee hired as security guard assaulted apartment tenant)). Although the present case involves alleged instances of assault and sexual harassment perpetrated by a manager against a subordinate level employee, I agree with the majority’s implicit determination that the third-party cases are nevertheless instructive. See Bates v. Doria (1986), 150 Ill. App. 3d 1025; Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931; Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265; Gregor v. Kleiser (1982), 111 Ill. App. 3d 333; Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920.
The rule, as often articulated, in its present-day form states that a cause of action exists against an employer for negligently hiring, or retaining in his employment, an employee he knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. (Bates, 150 Ill. App. 3d at 1030.) While I am in complete agreement with the imposition of the well-established duty which requires employers to exercise reasonable care in the selection and retention of employees, I consider it an unnecessary expansion of this principle to impose in all cases a specific duty on employers to inquire about past instances of sexual harassment by prospective management employees based solely on the circumstance that men and women will be working together. In reaching its determination to impose this affirmative duty, I believe that the majority either fails to acknowledge, or intentionally abrogates, a critical element of the existing negligent hiring cases. The majority essentially eliminates any consideration of the circumstances and particular type of employment that the prospective employee will be engaged in as a means of determining what constitutes the exercise of reasonable care. Although the majority identifies a supervisory or management role in a mixed-gender workplace as the particular circumstance by which its newly recognized duty to investigate is triggered, this is a circumstance which is by no means peculiar but, on the contrary, is common to the majority of workplaces in this country.
A common thread running through the negligent hiring cases cited by the majority is the existence of an inherent quality concerning the circumstances of the offending employee’s occupation that places third parties at some heightened level of risk. For example, in Western Stone the offending employee was a steamship captain charged with the safe operation of a hazardous ship towing operation; in Easley, the offending employee was an armed security guard entrusted with a passkey to a number of apartments; in Gregor, the defendant employed a bouncer with an alleged vicious propensity for physical violence upon others to maintain order at a social gathering; in Malorney, the court interestingly found it significant that the offending employee was operating an over-the-road truck with a sleeping compartment which that court believed presented a special danger to female hitchhikers; in Fallon, the alleged offending employees were hired as physical education instructors teaching trampoline techniques to sixth-grade children; and in Bates, the offending employee was an off-duty sheriff’s deputy. In each of these cases, where the court assigned significance to the necessity of conducting a background investigation into particular behavior, it was borne out of a consideration of the particular task to which the offending employee was assigned and the potential for heightened risk to others.
As our supreme court stated in Western Stone, the duty placed on employers to exercise “ordinary care in the employment of servants require[d] a degree of diligence and caution proportionate to the exigencies of the particular service.” (Emphasis added.) (Western Stone, 151 Ill. at 485; accord Focke v. United States (D. Kan. 1982), 597 F. Supp. 1325, 1345-46; Ponticas v. K.M.S. Investments (Minn. 1983), 331 N.W.2d 907, 912-13; see generally Note, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 Chi.-Kent L. Rev. 717 (1977).) The court further declared that it is “such care as a reasonably prudent person would exercise, in view of the consequences that might reasonably be expected to result if an incompetent, careless or reckless servant was employed for the particular duty.” (Emphasis added.) (Western Stone, 151 Ill. at 485.) What becomes apparent from the court’s early pronouncement is that the extent of an employer’s duty to exercise ordb nary care in the selection of employees would be determined by the peculiarities of a particular occupation. As the court itself concluded, “[w]here *** a master employs a servant to engage in a business known to be hazardous, and where the proper and safe discharge of the duty requires a high degree of care, skill and diligence, the master will be held in the selection of the servant to the exercise of care reasonably commensurate with the perils and hazards likely to be encountered in the performance of the duty.” Western Stone, 151 Ill. at 485.
I agree with the majority that there is no basis for distinguishing the quality of harm presented by the sexual harassment alleged by plaintiff from the quality of harm threatened in other cases in which tort liability for negligent hiring has been recognized. The majority opinion seems to be predicated, however, on the notion that anytime persons of the opposite sex are commingled in a work environment the risk of harm is so elevated that an employer must guard against the potential danger by investigating the backgrounds of all supervisory employees. Although I recognize that sexual harassment is all too prevalent and has the potential for infliction of serious harm, I am unwilling to take such a dismal overall view of the American workplace. The fact that serious abuses sometimes occur is not a reason to assume that danger lurks in every employment relationship to such an extent that it is reasonable to require employers to launch background investigations of all supervisory personnel before any hint of impropriety is even suspected. To be perfectly clear, I am not suggesting that there would never be a circumstance where it would be reasonably prudent for an employer to investigate a prospective employee’s background for prior instances of sexual harassment. My concern is that the majority has imposed on employers a blanket duty to investigate for prior instances of workplace sexual harassment for no reason other than the circumstance of mixed-gender workplace.
As analogous support for my position, I note that at least two other jurisdictions have expressly rejected the notion that there exists a duty upon an employer to make an inquiry as to a prospective employee’s criminal record even where it is known that the employee is to deal regularly with members of the public. (See Ponticas, 331 N.W.2d at 913; Evans v. Morsell (1978), 284 Md. 160, 167, 395 A.2d 480, 484.) As noted by the court in Ponticas:
“If the employer has made adequate inquiry or otherwise has a reasonably sufficient basis to conclude the employee is reliable and fit for the job, no affirmative duty rests on him to investigate the possibility that the applicant has a criminal record. *** Liability of an employer is not to be predicated solely on failure to investigate criminal history of an applicant, but rather, in the totality of the circumstances surrounding the hiring, whether the employer exercised reasonable care. This is generally a jury question.” (Ponticas, 331 N.W.2d at 913.)
In light of the above jurisdictions’ express rejection of any affirmative duty to inquire about a prospective employee’s criminal background and the absence of any such duty in Illinois, it seems to follow that liability here should not be predicated solely on the failure to investigate for prior instances of sexual harassment; rather, the focus should be on the totality of the circumstances and whether the employer exercised reasonable care in light thereof. Moreover, considering the competing burdens and important public policy concerns that are implicated by the imposition of such an affirmative duty, I further question whether such a determination is better left to the legislature.
In my view, existing negligent hiring precedent, and a recognition of the already existing duty to exercise reasonable care in the selection and retention of employees based upon the totality of the circumstances and the particular exigencies of an individual’s employment, already provide plaintiffs with a suitable recourse in these cases. The inquiry here should not be whether, as plaintiff urges and the majority agrees, to impose on employers a duty to investigate all prospective managerial employees for prior instances of sexual harassment where that prospect will be employed in a mixed-gender workplace; rather, the inquiry should be whether plaintiff has alleged facts sufficient to establish that defendant breached its duty to exercise reasonable care in the selection of management employees. By focusing the analysis on the breach aspect of the tort, existing precedent is left undisturbed, it becomes unnecessary to fashion a specific duty to investigate in all cases for prior instances of sexual harassment, and it allows the trier of fact to consider more fully the totality of the circumstances surrounding the nature of the employment and an employer’s hiring practices.
In determining the necessity and scope of a background investigation, the type of work to be performed should be considered (Garcia, 492 So. 2d at 441), and, if it is concluded that such an investigation is required, its scope should be directly related to the severity of risk third parties are subjected to by an incompetent employee (Ponticas, 331 N.W.2d at 913).
I further suggest that when analyzing whether an employer is required to conduct an investigation into specific instances of prior conduct, the inquiry should consider such factors as whether the employer at the time of hiring had actual or constructive knowledge of an employee’s unfitness and whether the exigencies of the particular employment presented a heightened risk of harm to third parties, thus necessitating an investigation.
Applying the foregoing to the circumstances of the present case, it is my conclusion that plaintiff failed to allege facts sufficient to establish a breach of the duty to exercise reasonable care in hiring. Plaintiff alleged that defendant owed a “duty to Plaintiff to investigate and breached its duty of care to its employees by hiring an employee in the person of Defendant Walthall when Defendant Phoenix knew, or should have known of his propensity for sexual harassment and discrimination.” Plaintiff further alleged Walthall’s behavior was “discoverable *** through reasonable inquiry.”
Notwithstanding plaintiff’s conclusional allegation that defendant knew, or should have known, of Walthall’s prior instances of sexual harassment, reading the complaint as a whole, I find no well-pleaded factual allegations sufficient to establish that defendant had notice, either actual or constructive, of Walthall’s alleged prior instances of sexual harassment at the time of hiring. Additionally, plaintiff pleads no facts to establish that the exigencies and circumstances surrounding Walthall’s employment were such as to place defendant on notice that a background inquiry into prior instances of sexual harassment was necessary. Accordingly, I would affirm the circuit court’s dismissal of count IV of plaintiff’s first amended complaint.