Many of us have experienced the calm, soothing feeling of a deep tissue massage. For most this represents a luxury, a self-indulgent treat. But it is also one of the most vulnerable positions in life. After all, you’re lying naked or nearly naked under a sheet alone in a room with a total stranger. You must trust the licensed professional who will be touching you.
Sexual Assault at Massage Envy
In 2017 the nation’s largest provider of massage services, Massage Envy, was accused of betraying that trust. The corporation boasts 1,200 locations in every state except Wyoming. It employs more than 35,000 “wellness professionals” and performs more than 1.5 million treatments per year. During one of those massages, Susan Ingram, once a satisfied customer claims her “massage” turned ugly.
In her report to police Ingram stated that a Massage Envy masseur, James Deiter, rubbed his groin against her, placed his erect penis in her hand, and aggressively groped her breasts. After terminating the massage and leaving, she later called the manager to complain but was rebuffed. Then she went to the police.
In all, 180 women have filed lawsuits, police reports, or complaints with state licensing boards about Massage Envy employees. While the company describes each incident as “heartbreaking” most investigators say it does little to train and equip individual locations on how to conduct a proper investigation. The company does not require franchisees to report misconduct to police unless mandated by local statute. In some instances therapists have been allowed to quietly transfer to another location with a “clean slate”.
Tara Woodley is another victim who alleges her therapist, Habtamu Gebreselassie started performing oral sex on her until she confronted him, demanding that he stop. Woodley sued Massage envy for negligent hiring, negligent retention, negligent supervision, and infliction of emotional distress.
How Could a Massage Therapist Commit Sexual Assault?
Advocates for the victims say there isn’t a “typical” perpetrator. Some are experienced therapists and some are new to the job. One statistic remains constant however—many women are too afraid or embarrassed to report the abuse.
So who is responsible in the case of an employee who commits a crime? Is the employer allowed to claim clean hands when they had no idea the behavior was happening? As with most things in our justice system it depends largely on the facts.
First, let’s discuss the actual crime. In this case most perpetrators have been charged with “sexual assault”. The definition and elements of sexual assault vary by jurisdiction but it is typically defined as unwanted sexual contact that stops short of rape or attempted rape. It includes unwanted sexual touching or fondling. Clearly a masseur having sexual contact with a client against their will qualifies.
It’s also important to distinguish sexual assault convictions for which those convicted face jail time, fines, and registration as a sex offender, and civil torts. A tort is a wrong for which the victim can sue for damages (usually money). What Woodley sued for is a tort, and is a part of a civil case.
Responsibility of Massage Envy and Other Spas for Sexual Assault
And where is Massage Envy in this equation? Is the company liable for the actions of some rogue employees? Maybe. There are a handful of legal theories that can lay blame at the foot of an employer if certain criteria are met. Let’s examine two of them:
“Respondeat superior” is a fancy Latin phrase which means “let the superior answer” and conveys the notion that an employer is legally responsible for the actions of its employees. Massage Envy argues that the rule only applies if the employee is acting in the scope of their employment. In other words, in general the employer will be liable if the employee was doing his or her job, carrying out company business, or acting on the employer’s behalf when the incident took place. But if the employee acted independently or purely out of personal motives, the employer might not be liable.
Here are two examples: a pizza shop offers delivery in 30 minutes or less, or the next order is free. The delivery person hits a pedestrian while frantically driving to beat the deadline. In this case the company will likely be held liable. In the next case, a pharmaceutical company gives its sales people cars to drive for work related sales calls. After hours an employee uses their car for personal errands and hits a pedestrian. Mostly likely the company will not be responsible.
Under this theory, someone who is assaulted by an employee can sue the company for failing to take reasonable care in hiring (negligent hiring). Or, they could be sued for keeping the employee after learning the worker posed a potential danger (negligent retention).
In this type of case an employer is only liable if they acted carelessly. In other words, the company must know, or should have known, that the employee posed a danger and did nothing about it.
What Should Massage Envy Do?
In the case of Massage Envy many victims allege that after complaining about abuse the company did nothing, including retaining the therapist. In other cases, the offender was allowed to transfer to another franchisee with a clean record. Both of the scenarios may fit within the definition of negligent hiring and retention.
So, what should a company do to avoid these types of claims? Here are a few tips:
First, perform background checks. Many sexual predators have records of bad behavior. Performing thorough background checks is easier today than ever before. Online databases allow companies to cheaply and completely assess the background of their applicants.
Second, use a heightened level of care when hiring employees who will have contact with the public. It is more likely for a company to be held liable if their employees work closely with individuals, including visiting people in their homes and working with vulnerable people such as children or the mentally disabled.
Finally, remove problem employees immediately. Create solid, defensible practices and procedures to thoroughly investigate possible crimes in the work place and then act decisively on the results.