The Sporty One is a division of CARDWARE Inc. and consists of ten stores selling sportswear. CARDWARE wants the salespeople at The Sporty One stores to be appropriate to its brand. Therefore, the company looked for an energetic, athletic, and youthful employee, preferably with experience in marketing or retail sales. Two candidates applied for the position: Petunia Rotunda, a slightly plump middle-aged woman with a 5-year retail experience, and Noah Dahl, a slender racquetball player with customer service experience and a college degree in marketing. The company hired Noah, but Petunia was dissatisfied with this decision, claiming that she was discriminated against based on age. When Noah began working, Petunia came to the store and started to insult him. Noah took her by the arm and shoved her toward the door. Petunia bumped into a 92-year-old passer-by, Hetty Whitestone, who suffered a concussion because of this incident and died. Now, CARDWARE should think of its liability and available defenses in case of possible lawsuits.
Did CARDWARE have genuine BFOQs (Bona Fide Occupational Job Qualifications) in its ad?
BFOQs are identifiable characteristics that are necessary for a candidate to successfully perform a particular job. BFOQs can include such characteristics as gender, religion, and national origin but can neve include race (Miller, 2015). CARDWARE’s ad did not include genuine BFOQs since it did not disqualify candidates for the position based on their religion, national origin, or gender. Moreover, the ad particularly stated that The Sporty One was an “equal opportunity employer.” Additionally, the company’s slogan, “You don’t have to be an athlete to look and feel like one,” suggests that no specific attributes are necessary for a person to look like an athlete. Perhaps, the company’s slogan made Petunia believe that she was qualified for the position of a salesperson in a sportswear store.
Petunia was convinced that she was rejected because of her age, but it was not the case. As a rule, if a person believes he or she has been rejected by an employer based on age, he or she should prove that, but for the employer’s bias, he or she would be qualified for the position (Nagele-Piazza, 2020). In the presented case, the company looked for an athletic person “able to ‘sport’ the clothing lines of The Sporty One with style.” As a result, Noah, a young male engaged in sports and having a marketing education, was a more qualified candidate as per the advertisement than Petunia, whose only appropriate qualification was retail experience. Thus, Petunia had no legal proof that the employer rejected her because of her age.
If Petunia brings a lawsuit based on negligence against CARDWARE and The Sporty One, will CARDWARE be responsible for Noah’s behavior? If so, under what theory?
If Petunia brings such a lawsuit, CARDWARE and The Sporty One may be responsible for Noah’s behavior based on the doctrine of respondeat superior. Under this doctrine, a principal is liable for the wrongdoings made by agents while acting within the scope of their agency (Miller, 2015). In this case, CARDWARE is the principal, and Noah became its agent once he was hired. However, to determine CARDWARE’s liability, it is necessary to determine whether Noah acted within the scope of his employment (Miller, 2015). On the one hand, by banishing Petunia from the store, Noah acted in the company’s interests, trying to retain customers. On the other hand, his actions were not the ones commonly performed by employees or authorized by the employer.
What defenses might CARDWARE assert?
To defend itself, CARDWARE may argue that Noah’s actions were not negligence but a battery. A battery can be defined as “an intentional harmful or offensive contact,” which is exactly what Noah did to Petunia (Miller, 2015, p. 125). A battery is an intentional tort, and a principal is generally not liable for the agent’s intentional torts and crimes (Justia, 2018). Therefore, CARDWARE appears to be not liable for Noah’s actions toward Petunia.
If Hetty Whitestone’s estate claims that CARDWARE should be responsible for Hetty’s death, will it?
If Hetty Whitestone’s estate claims that CARDWARE should be responsible for Hetty’s death, the company will not be held liable. In the given case, CARDWARE’s employee, Noah, shoved Petunia, which was his intentional tort. Further, Petunia stumbled, ran into one of the clothing racks, and, after that, knocked over Hetty. Thus, it was Petunia who caused Hetty to suffer a concussion, which later led to his death. While CARDWARE has control over Noah as its agent, it has no control over its customers, one of whom was Petunia. Consequently, CARDWARE cannot be held responsible for Hetty’s death.
What defenses might CARDWARE utilize?
As explained above, CARDWARE is not liable for Hetty’s death because it was caused by Petunia, who was out of CARDWARE’s control. Yet, CARDWARE may defend itself by proving that the accident with Hetty occurred outside of its property. According to the duty of landowners, landowners should protect people entering their property from harm (Miller, 2015). CARDWARE may argue that it has established a safe working environment for employees and customers in its store. Furthermore, if CARDWARE proves that Petunia ran into Hetty outside of the company’s store, it will not be liable for Hetty’s death.
To sum up, CARDWARE’s ad did not contain BFOQs since it did not reject candidates based on gender, national origin, or religion. Furthermore, Petunia lacks legal proof that she was rejected only because of her age. In Petunia’s lawsuit based on negligence and in Hetty Whitestone’s estate’s lawsuit, CARDWARE may be held liable under the doctrine of respondeat superior. However, Noah’s actions were not negligence but an intentional tort, for which CARDWARE cannot be held liable. CARDWARE also will not be held liable for Hetty’s death because it was caused not directly by Noah but by Petunia, over whom CARDWARE had no control. Nevertheless, CARDWARE may defend itself by proving that the accident occurred outside of its premises and that the company fulfilled its duty to establish a safe environment in its store.