Employment Law Takeaways from the Deshaun Watson Debacle

ICYMI, current Cleveland Browns quarterback Deshaun Watson faced 22 civil lawsuits filed against him by massage therapists who alleged that, while he was playing football for the Houston Texans, he sexually harassed and assaulted them. A Texas grand jury declined to indict him on criminal charges and he settled all but one of the lawsuits before joining the Browns' organization. Notably, the Browns gave up multiple years of first-round draft picks to procure Mr. Watson's talents and gave him a 5-year guaranteed employment contract worth a total of $230 million.

Like the lawyers in our firm, you may be scratching your head, wondering a few things. What are the benefits and risks of hiring a “superstar with a checkered past” (or an allegedly checkered past)? Could the Texans be held liable for the acts of its star quarterback (note that the Texans apparently gave Deshaun Watson a non-disclosure agreement to give to massage therapists, after the allegations of assault were made)? What about the Browns? If Mr. Watson engages in this behavior on their watch, can they be held liable?

Leaving for now the issue of whether employers should hire superstars with allegedly checkered pasts, the sources of liability for both football organizations are many, although we, as Ohio lawyers, can't speak to Texas law or whether the Texans can, or cannot, be held liable. Under Ohio law, though, employers can generally be held liable for sexual harassment committed by their employees towards other employees under Title VII of the federal Civil Rights Act, and they may be held liable under Chapter 4112 of the Ohio Revised Code.

Sexual harassment comes in two flavors: quid pro quo and hostile work environment. Generally, employers are liable for the acts of supervisors towards their employees, whether it be quid pro quo (asking for sexual favors in exchange for preferential treatment or to avoid demotion or termination) or creating a hostile work environment. Whether a working environment is hostile depends on the totality of the circumstances and the actions of the perpetrator must be so severe or pervasive as to unreasonably interfere with the victim's ability to do their job.

Whether, and when, an employer is liable for a hostile-work environment depends on who is creating it. If there is an allegation that a supervisor is creating a hostile work environment, the employer may avoid liability by only showing that it has a policy or procedure to prevent such harassment and that the claimant unreasonably failed to follow it. If a co-worker is creating the hostile environment, the employer can be liable only if it knew or should have known what was happening and failed to take steps to stop, or prevent, it. 

Other claims that sometimes accompany sexual-harassment allegations include common-law assault and battery. An employer can be liable for an assault or battery committed by its employee if it knew or should have known of the conduct. Sometimes sexual-harassment claimants allege that the employer "negligently retained or supervised" the accused employee. This type of claim requires the claimant to show that the employer had "actual or constructive knowledge" of the employee's "incompetence" and that the employer's negligence in hiring that employee anyway was the proximate cause of the injury or harm.  

But what if the person claiming sexual harassment or assault is not an employee of the same organization as the "perp"? Even though an employer in this situation cannot be held liable under Title VII or Chapter 4112 of the Ohio Revised Code, it can still be held liable for common-law assault and battery and for negligent retention and supervision. To avoid iability to "outsiders," the employer would have to show that it had no knowledge of what was going on. 

In the Deshaun Watson situation, if allegations arise that Mr. Watson is engaging in this type of behavior in Ohio, as to massage therapists who are employed by the Browns, the Browns can be held liable under Title VII, Chapter 4112, and at common law. If the aggrieved massage therapists are not employed by the Browns' organization, the Browns may be liable to these non-employees based on the common-law theories described above, even if not under Title VII or Chapter 4112.

It would be very difficult for the Browns to claim that it did not know this type of behavior occurred in the past or when it hired Deshaun Watson for $230 million, so it may be particularly difficult for the Browns to avoid liability under a theory of negligent retention or supervision -- both as to its own employees and non-employees alike.

The moral of this story is that, when employers hire someone who is alleged to have committed various types of wrongdoing in the past, it does so at its own peril, if the same kinds of behavior crop up in the new working environment.