Strict Liability for Employers of Wild Employees?

The ABA (American Bar Association) has posted an interesting article about a case before the 3rd Circuit appeals court. There, the judges are reviewing the hefty $550,000 fine imposed on the CBS network for Janet Jackson’s stunt at the Super Bowl in which she exposed herself to a shocked and unforgiving American public (was the greater civilized Earth as horrified as we were?).

The government argued that CBS should pay on the basis of “respondeat superior,” in which employers are responsible for the tortious conduct of employees. The problem with the theory is that CBS officials don’t operate like your every-day employer – the officials in charge don’t always know what the lower echelon is doing, and in fact is often kept in the dark on purpose. CBS argued that the result would be far too close to strict liability than the theory is supposed to be, i.e. this leads to automatic liability for whatever wild, uncontrollable thing an employee might do. The theory is not supposed to impose liability for actions that are so startling in the employment context (See Rodgers v. Kemper Const. Co. (1975) 50 C.A.3d 608, 124 C.R. 143). Hmmm…meaning, was it really such a shock that Janet Jackson would do something “unpredictable” and “unforeseeable” on live television? Meaning…could CBS officials REALLY have been so naive? Meaning…her actions were foreseeable in that context and therefore CBS should be liable. We’ll see what the court says.

The other issue the judges face is whether the minute, televised exposure of a nipple qualifies as “indecent,” which is the threshold requirement for indecency fines by the F.C.C. Personally, I never thought it was indecent. I was rather horrified, not at the exposure, but at the negative reaction of so many. This leads me to contemplate the breast-feeding case that’s captured the media.

Recently in Toledo, Ohio, a woman was asked to stop breastfeeding her baby in a mall store. Ohio law says all women are permitted to breastfeed in public. The woman at the time had been embarrassed by the clerk’s reaction and immediately stopped and left the store. She’s now suing the store for damages. The story brings to light once again the American conflict between breastfeeding and female sexuality – while the law seeks to prevent such store clerks from intervening, the clerk’s instinct was that breastfeeding was as shocking as what Janet Jackson did – she could see a nipple by golly! Yikes!

Now here’s my question…if the 3rd Circuit sides with the government and affirms the fine, will a similar employer get equally fined if say…Nicole Richie decides to breastfeed her upcoming baby live on the air?

I don’t know…what do you think?

Posted by C. Bekhor

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