On March 24, 2017, the U.S. Court of Appeals for the Seventh Circuit ruled that the family of a woman murdered by her Home Depot supervisor at a family event could proceed against her former employer(s) on a theory of negligent supervision, hiring, and retention. In so holding, the Seventh Circuit adopted a broad and novel view of employers’ duty to control managers who engage in criminal activity off the employer’s premises and outside the scope of their employment by abusing their supervisory authority.

The supervisor in Anicich v. Home Depot U.S.A., Inc., No. 16-1693, 2017 WL 1101090 (7th Cir. Mar. 24, 2017), Brian Cooper, was a regional manager for Home Depot with an alleged history of engaging in public outbursts, verbal abuse, and fixating on younger female subordinates. The complaint states that Cooper targeted the victim, a 21-year-old female employee, for an extended period of time by:

• Referring to her as his “girlfriend” at work, and yelling and cursing at her in front of customers
• Calling and texting her outside of work time, pretending that he needed to discuss a work issue in order to get her attention, and then pressuring her into spending time with him alone
• Denying her breaks if she intended to spend time with a man
• Insisting she come with him on business trips, including once requiring that they share a hotel room
• Throwing an object on at least one occasion

Cooper was convicted of strangling and raping the victim at an out-of-state family wedding, which Cooper allegedly forced the victim to attend by threatening to fire her or cut her hours. The complaint alleges that the victim had complained about Cooper and that Cooper was ordered to take anger management classes, but that the store did not ensure he completed those classes or remove the victim from his supervision.

The defendants — Home Depot USA, Inc., Grand Service, LLC, and Grand Flower Growers, Inc. (all alleged to have jointly employed Cooper)— moved to dismiss, arguing that they did not owe the victim a duty of care given the circumstances of her death. The U.S. District Court for the Northern District of Illinois agreed, finding that it was not reasonably foreseeable that Cooper’s sexual harassment would rise to the level of physical violence and that in any event, the defendants could not reasonably have guarded against “social activities outside of work that occur off the premises.”

The Seventh Circuit reversed. Relying on principles from the Restatements (Second) of Torts and Agency, and Title VII of the Civil Rights Act of 1964, the court held that Illinois’s negligent hiring, supervision, and retention law was broad enough to allow Cooper’s employer to be held liable for his actions. While noting a duty of care typically is not imposed on employers to control employees who act off-site, unaided by the employer’s chattel (possessions), and outside the scope of their employment, the court pointed out that Cooper allegedly forced the victim to attend a family wedding with him by threatening to affect her terms and conditions of employment; specifically, firing her or cutting her hours. The court held this abuse of Cooper’s supervisory authority was reasonably analogous to using his employer’s “chattel” to commit the murder, allowing for liability under a negligent retention theory. The court also relied heavily on agency and sexual harassment liability principles to remark that the law has “shifted” towards holding employers vicariously liable for intentional torts committed outside the scope of employment but through the abuse of supervisory authority, citing the U.S. Supreme Court’s decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

The court also held that the lack of previous threats or physical violence from Cooper towards the victim did not make it unforeseeable that Cooper’s escalating verbal abuse towards the victim could take the “small further step to violence.”