Respondeat Superior

THE PRIMARY DOCTRINE by which organizations have been held legally responsible for their employees' actions is taken from civil tort law, and is known as respondeat superior (let the superior respond).[Page 687] The rule originated in England in the late 17th century (although it is traceable to more ancient times), and was meant to deter employers from escaping financial responsibility for the actions of their employees. Respondeat superior was first used in England in the mid-19th century to justify a criminal indictment, and it was first used for that purpose in America a short time later.

By the end of the 19th century, there was ample precedent to prosecute corporations under respondeat superior. Congress passed the Elkins Act in 1903, which outlawed shipper rebating and contained an explicit statutory clause for corporate criminal liability. Modern theories based on respondeat superior impose both civil and criminal liabilities on organizations. They are meant to force superiors to be vigilant of the behavior of people who work under them. Respondeat superior requires three elements: 1) the agent of the organization committed the crime; 2) while acting within the scope of his or her authority; 3) with an intent to benefit the corporation.

An organizational criminal liability that is different from respondeat superior is strict liability. Strict liability allows for the punishment of individuals and organizations who may not have intended to commit the illegal act. Most criminal statutes require that the perpetrator have an intention to commit the offense. However, strict-liability administrative civil and criminal penalties impose no requirement of intent on organizations or individuals. In essence, strict liability is blame without fault.

There are two basic purposes for imposing strict liability. First, strict liability supposedly encourages people to find out about the law, however obscure it may be, and to follow it. As in cases of respondeat superior, strict liability is supposed to act as a deterrent to a claim of non-responsibility for the offense, and it precludes corporate executives from purposely insulating themselves from knowledge of their employees' activities. The second major justification for strict liability is that it simplifies the prosecution of offenses because intent, which is potentially a very complex issue associated with behavior occurring within larger organizations, does not have to be proved. An organization is expected to know about wrongdoing within its ranks, and “should know” about it. Even accidental offenses, such as environmental or fair trade mishaps, are punishable by strict liability.

To exemplify the stringent legal precedents that have been established for corporate criminal liability, organizations are punishable when employees' collective actions constitute a crime, but each person's individual action does not. This model, known as collective intent or collective knowledge, imputes intent to an organization that never existed among its human actors. Unlike respondeat superior, liability for a collective intent offense is not vicarious because the crime arises only out of activities by a plurality of the organization's parts.

Until the 1960s, corporate criminal liability was generally limited to instances where higher level managers were directly involved in or willfully ignorant of the legal infraction. Throughout the 1970s and 1980s, organizational criminal liability was more stringently applied under strict liability and collective knowledge concepts.

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