This week yet another sexual misconduct story broke. It involves Larry Nasser, formerly the doctor for USA Gymnastics and faculty member at Michigan State University. Yes, he faced over 140 charges from female gymnasts (many of whom were minors) of sexual abuse, and he has now been sentenced to something like 175 years in prison. Why are we talking about it here at the EmpLAWyerologist though? Isn’t this a criminal matter? Yes, it is. Guess what? It’s also an employment law matter. I’ll tell you why, though if you’ve been following The EmpLAWyerologist you might be able to guess. Read on for more…
As always, we’re going to get some factual background. Here it is. Larry Nasser started working as an athletic trainer in 1986 at USA Gymnastics, the governing body that selects Olympic teams. Then he went to medical school at Michigan State University, and became USA Gymnastics’ medical coordinator in 1996. He also taught and practiced medicine at Michigan State University, starting in 1997. He therefore was both a renowned sports physician and a professor at a reputable academic institution. Suddenly, Nasser retired from USA Gymnastics in 2015. The reason became apparent one year later, after his arrest for “criminal sexual conduct with a person younger than 13”. MSU then fired him. Then came the flood of accusations of sexual assault of female gymnasts, some of whom were Olympic team members. In addition to state charges of sexual molestation, federal prosecutors in December 2016 charged Nasser with possession of child pornography, alleging that he had over 30,000 explicit images in his possession.)
Now, I’m not going to name all the accusers or get into the details of all the allegations. For one thing, there are too many. For another, I am not really looking to focus on Nasser’s personality or pathology or the criminal aspect. There are plenty of places where you can access that information. Beyond the human interest factor here, why should I, as an employment attorney, and you as employers be interested in this scandal? Very simply: Dr. Nasser was an employee and USA Gymnastics and MSU were his employer, and Dr. Nasser molested these girls and young women in the course of his employment with USA Gymnastics and MSU. You probably don’t need me to tell you where I’m going. Even under the best of circumstances both USA Gymnastics and MSU would be (and in fact probably are) looking at significant liability — for sure in civil damages, and perhaps some criminal liability as well.
Let’s review some basic principles of employer liability. If either or both employers knew or had reason to know that Dr. Nasser was not fit to be training or treating young female gymnasts they could be liable for negligent hiring. How might they have known? In the absence of an obvious indicator, if he had a criminal history and a criminal background check would have revealed that and if they did not run that background check, that could support a criminal hiring claim. I haven’t seen any indication of that, so let’s assume that in 1986 and in the 1990’s he had no such history. Both employers could also be liable for negligent retention, if during the course of Dr Nasser’s employment either employer knew or had reason to know of his conduct and kept him on. That’s where things start to get really, really messy.
You see, allegations of Dr. Nasser having molested the gymnasts started around 1996–the same year that USA Gymnastics promoted him to the position of medical coordinator. In a lawsuit filed in California by an Olympic team member from 2000 alleged that Dr Nasser abused her repeatedly between 1994 and 2000.
The Indianapolis Star conducted an extensive investigation of molestation allegations and discovered a pattern of coaches and other employees knowing about and failing to report sexual abuse to the authorities. This pattern included more than 360 cases over a 20-year period involving gymnasts’ accusations of sexual abuse. Four women told ESPN that they told MSU coaches or trainers about Nasser as far back as the 1990’s. An MSU softball player stated that she told three different trainers about Nassar, and that one in particular “brushed me off, and made it seem like I was crazy”. As if that was not enough, once USA Gymnastics knew of at least some of the allegations in 2015 they waited 5 weeks before reporting them to the authorities.
It seems pretty clear that both employers knew something was wrong, and, a) took no steps to even investigate the matter; and b) allowed Nasser and others guilty of similar misconduct to continue working for them, putting other female athletes, many of whom were underage, in harm’s way.
In today’s climate any type of sexual misconduct allegations are not likely to go away. All employers need to take this issue seriously. If your business or organization provides services to or otherwise has contact with minors then it must be even more vigilant. Yes, you should have complaint procedures and policies prohibiting sexual harassment, assault and discrimination. Yes, you should conduct training. But if you stop there, you will not be doing everything that is necessary to prevent this type of nightmare from happening in your own workplace. You may be wondering what else you can or should do. While I can’t give you an exhaustive list in this post, here are at least a few other steps you can take:
- I’ve said this before, but it bears repeating: Take all discrimination/harassment/abuse/misconduct complaints seriously. That means don’t ignore them, and investigate all of them;
- Report any allegations of child abuse, sexual or otherwise to the authorities – immediately.
- Pending any such investigation consider suspending or transferring the accused or taking some other steps that keeps those similarly situated to the accuser out of harm’s way.
- Monitor compliance with all policies and procedures, review and update those policies, and repeat and update training.
- Show your employees that management is committed to addressing the issue of sexual harassment/abuse. Encourage reporting of any concerns — and don’t retaliate or allow retaliate against anyone who does so — even if you feel the allegations are unfounded.
- Get out of those corner offices, get out from behind your desks and talk to your employees (and if appropriate your clients or patients) — and listen. You may be surprised what you can find out early enough to head off exactly the type of scenario USA Gymnastics and MSU have faced and have yet to face.
I’ll end here and get off the soapbox for now. Until next week…
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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