Inside or Outside the Scope of Employment... does it really matter?

The Faragher versus Boca Raton case states, “A ‘master is subject to liability for the torts of his servants committed while acting in the scope of their employment.’” What is the “scope of employment” anyways? The reading defined it as including conduct "of the kind [a servant] is employed to perform," occurring "substantially within the authorized time and space limits," and "actuated, at least in part, by a purpose to serve the master," but as excluding an intentional use of force "unexpectable by the master." It seems to me that this says that the organization can not be held liable for sexual harassment cases if, when the employer harasses the employee, he is not doing his ‘specified job’ during the time of the harassment. Under this definition, an organization will not be liable for crude comments made while the man is getting a soda from the vending machine, or refilling his coffee in the morning. Because these actions are not within his job description, he was not within the “scope of employment.”

The reading continues to say that the Courts of Appeals have typically held, or assumed, that conduct similar to the subject of complaint in the Faragher and Harris cases fall outside the scope of employment. “The courts have emphasized that harassment consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer. For this reason, courts have likened hostile environment sexual harassment to the classic ‘frolic and detour’ for which an employer has no vicarious liability.” In my opinion, this is completely unfair! Just as organizations, in the realm of electronic monitoring, are held liable for the conduct of their employees during work hours or on company property/equipment, they should be held liable for sexual harassment between employees during working hours or on company property. To me, actions taken or words spoken during working hours ARE within the scope of employment… you are, in fact, at work! I am not sure I understand the difference. For instance, take into consideration the Doe vs. XYC case:

“With actual or imputed knowledge that Employee was viewing child pornography on his computer, was defendant under a duty to act, either by terminating Employee or reporting his activities to law enforcement authorities, or both? We conclude that such an obligation exists. The existence of a duty is a matter of law, ‘deriv[ing] from considerations of public policy and fairness.’ …we agree with plaintiff that defendant had a duty to… take effective internal action to stop those activities, whether by termination or some less drastic remedy. That section places upon a master, in this case defendant, the duty to control his servant, here Employee, while the servant is acting outside the scope of his employment, as in the present case, to prevent the servant from ‘intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them.’ The servant was ‘using a chattel of the master’ and the master both ‘knows or has reason to know that he has the ability to control his servant’ and ‘knows or should know of the necessity and opportunity for exercising such control.’ Under these circumstances, a risk of harm to others was ‘reasonably within the [master's] range of apprehension.’”

Why is XYC liable and the city of Boca Raton is not when, in both cases, the employees were acting outside the scope of employment? In my opinion, these cases are not that different; therefore, the same rule should apply. Either employers should be held liable for actions outside the scope of employment, as in the XYC case, or they should not, as in the Harris and Faragher cases.

Do you agree or disagree, and why?