Kerans v. Porter Paint Co

Brief Fact Summary.

The Court of Appeals for Hamilton County (Ohio) affirmed an order from the trial court that granted summary judgment for the Appellee employer, Porter Paint Co. (Appellee), in the employee’s action for sexual harassment. The Appellant employee challenged the decision.

Synopsis of Rule of Law.

Where a plaintiff brings a claim against an employer predicated upon allegations of workplace sexual harassment by a company employee and where there is evidence in the record suggesting that the employee has a past history of sexually harassing behavior about which the employer knew or should have known, summary judgment may not be granted in favor of the employer, even where the employee’s actions in no way further or promote the employer’s business.

Facts.

The Appellants were Mr. and Mrs. Kerans (Appellants). Mrs. Kerans worked for a retail outlet owned by the Appellee and alleged the store manager sexually harassed her. Mrs. Kerans reported the incidents and the manager subsequently resigned. The Appellants filed a claim against the Appellee. The Appellants settled the claim against the Appellees’ store manager, but expressly reserved their right to bring action against the company, which they did filing a complaint containing five counts. The trial court granted summary judgment. The court of appeals affirmed. The Ohio Supreme Court reversed the judgment as to all the causes of action, except the first because it essentially duplicated of the other claims. The court held that the employee’s claims for sexual harassment were not barred by the exclusivity provision of the Workers’ Compensation Act (the Act) and further that there were disputed issues of fact as to whether the supervisor was acting in the scope of his employment
and as to whether the employer knew or should have known about the supervisor’s alleged history of sexual harassment.

Issue.

Is a claim of sexual harassment barred by the exclusive remedy provision of the Act?

Held.

No. The court held that the Appellants’ claims for sexual harassment were not barred by the exclusivity provision of the Act, stating that where an employee alleges sexual harassment by another employee and there is evidence in the record suggesting that the employee has a past history of sexually harassing behavior about which the employer knew or should have known, summary judgment may not be granted in favor of the employer.

Dissent.

The dissent takes the view that, while the majority’s intention of providing relief for sexual harassment victims is noble, he could not “join the majority in its creation of a new tort against an employer which has no foundation in common law.” In particular the dissenting Justice takes issue with what he sees as a haphazard cobbling together of disparate elements of statutory construction, stating: “[T]ort law does provide remedies for victims of sexual harassment. For example, actions have been brought under the theories of assault and battery. However, these claims each have their own distinct elements, which may not be blurred by lumping them into a general claim for sexual harassment.” Finally, the dissent sees such application as being in contravention of present statutory aims: “Either an expansive interpretation of the intentional tort exception or the development of new negligent tort actions would thwart the basic purpose of the statutory and constitutional scheme
by eroding the exclusivity of remedy provided by the Workers’ Compensation Act.”

Discussion.

In addition to the necessary distinction to be drawn between types of injuries covered by workman’s compensation statutes, the court in Kerans must address a number of corollary issues. The primary of which is a general one, the degree of responsibility an employer holds for worker safety. The court stated broadly, “An employer has a duty to provide its employees with a safe work environment and, thus, may be independently liable for failing to take corrective action against an employee who poses a threat of harm to fellow employees, even where the employee’s actions do not serve or advance the employer’s business goals.” More specifically, with regard to the applicability of the exclusive remedy provision, the court returned to the “types of injuries” analysis, stating, “A physical injury occasioned solely by mental or emotional stress received in the course of employment is an ‘injury’ within the definition,” however, the court clarified, the applicable statute “state [
d] that injury does not include psychiatric conditions except where the conditions have arisen from an injury or occupational disease.” Turning to the statutory language, the court pointed out “injury [for purposes of applicability of the exclusionary provision] does not include psychiatric conditions except where the conditions have arisen from an injury or occupational disease.” Thus, as the employee/plaintiff’s injury was purely psychological, it did not fall under the exclusionary provision and thus her claim was permissible. The court provided the rationale that, if the exclusionary provision were to apply, victims of sexual harassment would have no remedy under law.
The court then turns to the secondary corollary issue, that of an employer’s vicarious liability. It stated, “In determining whether to impose liability based on respondeat superior on an employer for the sexually harassing acts of one of its employees, federal courts have employed traditional agency principles.” The court continued, “Specifically, they have held that where an employee is able to sexually harass another employee because of the authority or apparent authority vested in him by the employer, it may be said that the harasser’s actions took place within the scope of his employment.” Thus the court concluded, “Where the harassment takes place during working hours, at the office, and is carried out by someone with the authority to hire, fire, promote, and discipline the employee, the harassing employee’s conduct takes place in the scope of his employment.”
The court then addressed a tertiary issue, the distinction between the tortuous action of an employee and an employer’s inaction as separate violations. The Court stated “A company’s failure to investigate a complaint of abusive treatment is independent of the abusive treatment itself and a company may be liable for failing to stop the abusive treatment regardless of whether the treatment itself rises to the level of an actionable tort.” Thus, the court states, “A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.”