[Cite as Hay v. Summit Funding, Inc., 2017-Ohio-8261.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
DIANNA HAY, : Case No. 16CA3577 : Plaintiff-Appellee, : : DECISION AND JUDGMENT vs. : ENTRY : SUMMIT FUNDING, INC., et al. : : Defendants-Appellants. : Released: 10/18/17
APPEARANCES:
Steven M. Loewengart and Curtis G. Moore, Fisher & Phillips, LLP, Columbus, Ohio, for Appellants.
Nicholas Kolitsos, Jones Law Group, LLC, Columbus, Ohio, for Appellee.
McFarland, J.
{¶1} Summit Funding, Inc., Eddie Hughes, and John Beasley (collectively,
“Appellants”) appeal the final judgment of the Ross County Court of Common
Pleas entered November 9, 2016. Dianna Hay (“Appellee”), a former employee of
Summit Funding, Inc., filed a complaint alleging Appellants engaged in conduct
constituting sexual harassment. Appellants filed a Motion to Compel Arbitration,
arguing Appellee’s claims were subject to arbitration by virtue of an agreement
Appellee executed at the time she was hired. In the appealed-from entry, the trial
court overruled Appellants’ motion. Appellants’ sole assignment of error is that Ross App. No. 16CA3577 2
the trial court erred in holding that Appellee’s claim of sexual harassment did not
fall within the scope of the arbitration agreement. Based upon our de novo review
in this matter, we find Appellants’ argument has merit. As such, we reverse the
judgment of the trial court.
FACTS
{¶2} On July 13, 2016, Appellee filed a complaint in the Ross County Court
of Common Pleas against Appellants Summit Funding, Inc., Eddie Hughes, and
John Beasley, alleging sexual harassment, hostile work environment, termination
in violation of public policy, retaliation, intentional and negligent infliction of
emotion distress, respondeat superior, defamation, and negligent hiring, training,
retention and supervision. The following is a summary of the allegations of her
complaint:
1) Upon Appellee’s employment in July 2015 as a loan officer for Summit Funding, Inc., a California corporation conducting business in Chillicothe, Ohio, Appellee was required to work alone in a branch office with Appellant Hughes. Appellee and Hughes were employed under the supervision of Appellant Beasley. Additionally, Hughes supervised Appellee’s time sheets and directed some job duties.
2) Within the first week of employment, Hughes exhibited unwanted and offensive sexual conduct towards Appellee which included sexually charged comments both verbally and via text and picture messaging; sexual advances; invasion of personal space; and Hughes taking a picture of Appellee’s “backside,” which he later published to Beasley.
3) Appellee rejected the sexual advances and requested that Hughes desist, but the harassment continued and heightened in severity and Ross App. No. 16CA3577 3
frequency. On one occasion, Hughes became physically violent. Appellee alleged she became concerned for her physical safety as well.
4) In August 2015, Beasley advised Appellee not to contact human resources regarding her complaints about Hughes’ behavior. In August 2015, Hughes confronted Appellee about her time sheets and other work matters, threatening not to pay her for overtime.
5) On or about August 31, 2015, per Summit Funding’s established protocol, Appellee reported the harassment to Summit Funding’s human resource director. On or about September 1, 2015, Appellee was directed not to report to work until an investigation into her complaints was completed.
6) On September 16, 2015, Appellee received two letters. In the first letter, Summit Funding advised that its investigation confirmed that Hughes did act inappropriately. In the second letter, Summit Funding advised Appellee that her employment was terminated.
7) Since Appellee’s termination, Hughes made and has continued to make defamatory remarks falsely stating Appellee was terminated by Summit Funding due to inability to perform her job.
{¶3} Appellee’s complaint demanded judgment against Appellants, jointly
and severally, and requested compensatory, special, and punitive damages.
Appellee further requested a declaratory finding that Hughes’ statements were
untrue and defamatory, as well as a retraction from Hughes.
{¶4} On September 16, 2016, Appellants filed a motion to compel
arbitration. On September 30, 2016, Appellee filed a memorandum contra the
motion to compel arbitration. On November 9, 2016, the trial court filed its Ross App. No. 16CA3577 4
decision and judgment entry denying the motion to compel arbitration. This timely
appeal followed.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN HOLDING THAT THE PLAINTIFF-APPELLEE’S CLAIMS DO NOT FALL WITHIN THE SCOPE OF THE PARTIES’ ARBITRATION AGREEMENT.”
A. STANDARD OF REVIEW
{¶5} The question of whether a party has agreed to submit an issue to
arbitration is reviewed under a de novo standard. Arnold v. Burger King, 48 N.E.3d
69, 2015-Ohio-4485, at ¶ 11; Hedeen v. Autos Direct Online, Inc., 8th Dist.
Cuyahoga No. 100582, 2014-Ohio-4200, 19 N.E.3d 957, ¶ 9, citing McCaskey v.
Sanford–Brown College, 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543, ¶ 7; and
Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884
N.E.2d 12. See also Cales v. Armstrong World Industries, Inc., 4th Dist. Scioto No.
02CA2851, 2003-Ohio-1776, ¶ 16; Intl. Union of Operating Engineers v. Flair
Builders, Inc., 406 U.S. 487, 491, 92 S.Ct. 1710 (1972); John Wiley & Sons, Inc. v.
Livingston , 376 U.S. 543, 547, 84 S.Ct. 909 (1964).
{¶6} Under a de novo standard of review, we give no deference to a trial
court's decision. Hedeen at ¶ 9, citing Brownlee v. Cleveland Clinic Found., 8th
Dist. Cuyahoga No. 97707, 2012-Ohio-2212, ¶ 9; Akron v. Frazier, 142 Ohio
App.3d 718, 721, 756 N.E.2d 1258 (9th Dist.2001). See Harter v. Chillicothe Ross App. No. 16CA3577 5
Long–Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012–Ohio–2464, ¶ 12 (de
novo review in the context of summary judgment motion practice.)
B. LEGAL ANALYSIS
{¶7} When parties to a contract have agreed in writing to arbitration of
disputes, the trial court must, upon application of a party and being satisfied that
the issue is referable to arbitration, stay its proceedings pending the arbitration.
R.C. 2711.02(B). However, arbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not agreed to so submit
* * *. Ritchie’s Food Distributor, Inc., v. Refrigerator Const. Services, Inc., 4th
Dist. Pike No. 03CA713, 2004-Ohio-2261, ¶ 9; Council of Smaller Enterprises v.
Gates, McDonald Co., 80 Ohio St.3d 661, 666–67, 1998–Ohio–172; Divine
Constr. Co. v. Ohio American Water Co., 75 Ohio App.3d 311, 316, 599 N.E.2d
388 (10th Dist.1991). If the party challenging arbitration has not agreed to
arbitration by contract, there is a presumption against arbitration. Bell v. Everen
Securities, Inc. 9th Dist. Summit No. 19581, 2000 WL 141001, *2, (Feb. 2, 2000),
citing Council of Smaller Enterprises at 667, 687 N.E.2d 1352.
{¶8} Appellants’ sole assignment of error challenges the trial court’s finding
that Appellee’s claims predicated on sexual harassment were not within the scope
of the arbitration agreement Appellee executed with Appellant Summit. Until the
existence of an agreement to arbitrate is established, “[o]ur inquiry is ‘ “strictly Ross App. No. 16CA3577 6
confined” * * * to whether the parties agreed to submit disputes * * * to
arbitration.’ ” (First alteration original.) Ritchie’s, supra, at ¶ 10, quoting Council
of Smaller Enterprises at 668, 687 N.E.2d 1352. General contract principals apply
to the determination of whether the parties agreed to an arbitration clause. Id. at
668, 687 N.E.2d 1352; Divine Constr. Co. at 316; Bell, supra.
{¶9} After the existence of an agreement to arbitrate is established,
there is a strong presumption in favor of arbitration, and any ambiguities or
doubts regarding the scope of the arbitration clause are resolved in favor of
arbitration. Sasaki v. McKinnon, 124 Ohio App.3d 613, 616, 707 N.E.2d 9
(8th Dist.1997); Gaffney v. Powell, 107 Ohio App.3d 315, 320, 668 N.E.2d
951 (1st Dist.1995). Generally speaking, Ohio's public policy encourages
arbitration as a method to settle disputes. Arnold, supra, at 23; Schaefer v.
Allstate Ins. Co., 63 Ohio St.3d 708, 711–712, 590 N.E.2d 1242 (1992); and
the Ohio Arbitration Act, R.C. Chapter 2711.1 As a result of Ohio's pro-
arbitration stance, courts indulge a strong presumption in favor of arbitration
when the disputed issue falls within the scope of the arbitration agreement.
Arnold, supra, at ¶ 24; Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471,
700 N.E.2d 859 (1998); Taylor Bldg., 117 Ohio St.3d 352, 2008-Ohio-938,
884 N.E.2d 12, at ¶ 27.
1 A trial court, “shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement.” R.C. 2711.02. Ross App. No. 16CA3577 7
{¶10} In their brief, Appellants emphasize the long-standing federal and
state law presumption favoring arbitration. Here, the trial court’s decision also
recognizes the strong presumption in favor of arbitration. However, the trial court
points out the presumption is not unlimited. “Though guided by a strong
presumption, Ohio also recognizes that principles of equity and fairness require
that greater scrutiny be given to arbitration provisions that do not involve parties of
equal sophistication and bargaining power.” Arnold, supra, at 25.
A. Appellants argue Appellee’s sexual harassment claims are within the agreement’s scope because sexual harassment is a form of sex discrimination.
{¶11} When deciding whether parties agreed to arbitrate a certain matter,
courts generally apply ordinary state-law principles that govern the formation of
contracts. Cales, supra, citing, First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 944, 115 S.Ct. 1920 (1995); see also Perry v. Thomas , 482 U.S. 483, 492-
493, 107 S.Ct. 2520 (1987), at fn. 9. General contract law holds that a court must
interpret a contract so as to carry out the intent of the parties. Ritchie’s, supra, at
¶ 11; Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities
Auth., 78 Ohio St.3d 353, 678 N.E.2d 519 (1997); Skivolocki v. East Ohio Gas Co.,
38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. “The
intent of the parties to a contract is presumed to reside in the language they chose
to employ in the agreement.” Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, Ross App. No. 16CA3577 8
597 N.E.2d 499 (1992); Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d
411 (1987), paragraph one of the syllabus. A court must construe a contract
against its drafter. Cent. Realty Co. v. Clutter, 62 Ohio St.2d 411, 406 N.E.2d 515
(1980).
{¶12} If the contract's terms are unambiguous, a court may not interpret the
contract in a manner inconsistent with those terms. Ritchie’s supra, at ¶ 12;
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978).
Contractual terms are ambiguous if the meaning of the terms cannot be deciphered
from reading the entire contract or if the terms are reasonably susceptible to more
than one interpretation. U.S. Fid. & Guar. v. Aultman St. Elizabeth Med. Ctr., 129
Ohio App.3d 45, 55, 716 N.E.2d 1201 (2nd Dist.1999). If a contract is clear and
unambiguous, then its interpretation is a matter of law that we review de novo.
Nationwide Mut. Fire. Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652
N.E.2d 6841(1995). Ritchie’s, supra, at ¶ 13. We begin by setting forth the
language contained in the arbitration clause at issue:
“A. Claims Covered by the Agreement
The only claims that are arbitrable are those that are justiciable under applicable federal state or local law. Arbitrable claims include, but are not limited to: * * * claims for discrimination (on the basis of, but not limited to, race, sex, * * * claims for violation of any federal, state, or other governmental law, statute regulation or ordinance (except as provided below).” Ross App. No. 16CA3577 9
{¶13} As is evident, the language of the parties’ arbitration agreement
explicitly provides for claims for discrimination on the basis of sex. However, in
its judgment, the trial court noted that the arbitration language at issue did not
specify “sexual harassment” but only “sexual discrimination.” In essence, this is a
question of whether, due to the omission of the term “sexual harassment,”
Appellee intended to agree to arbitrate a sexual harassment claim.
{¶14} Appellants assert it is well-settled that sexual harassment is a form of
sexual discrimination under Title VII of the Civil Rights Act of 1964 and Ohio
Revised Code 4112. Therefore, the trial court erred in holding there was a
distinction between sexual harassment and sexual discrimination. By contrast,
Appellee argues that while it is true that a person can be both sexually harassed and
discriminated against in the same instance, one can also be sexually harassed
without being discriminated against. As such, the harassment claim stands on its
own.
{¶15} We are compelled to agree with Appellants. The Equal Employment
Opportunity Commission (EEOC) has provided the following guidance on the
relevant terms herein:
“Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).* * * Ross App. No. 16CA3577 10
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. * * *
To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people. * * *
Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Harassment can occur in a variety of circumstances, including, but not limited to, the following:
The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee. The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. Unlawful harassment may occur without economic injury to, or discharge of, the victim.”
{¶16} Furthermore, the EEOC’s definition of sexual harassment is as
follows:
“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. * * *
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.” Ross App. No. 16CA3577 11
{¶17} The parties have also directed us to several pertinent cases. In
Meritor Savings v. Vinson, FSB, 477 U.S. 57, 64, 106 S.Ct. 2399 (1986), the
United States Supreme Court observed that Title VII of the Civil Rights Act of
1964 makes it “an unlawful employment practice for an employer ... to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). The Meritor opinion
highlighted the EEOC Guidelines issued in 1980 and specified that “sexual
harassment,” as there defined, is a form of sex discrimination prohibited by Title
VII. Id. at 65.
{¶18} In Hampel v. Food Ingredient Specialties, Inc., the Supreme Court of
Ohio recited Meritor’s language that held: “[A] plaintiff may establish a violation
of R.C. 4112.02(A)'s prohibition of discrimination “because of * * * sex” by
proving either of two types of sexual harassment: (1) “quid pro quo” harassment,
i.e., harassment that is directly linked to the grant or denial of a tangible economic
benefit, or (2) “hostile environment” harassment, i.e., harassment that, while not
affecting economic benefits, has the purpose or effect of creating a hostile or
abusive working environment. Various Ohio appellate courts have cited the
language of the Meritor and Hampel decisions. Ross App. No. 16CA3577 12
{¶19} In Kilgore v. Ethicon Endo-Surgery, Inc.,172 Ohio App.3d 387, 2007-
Ohio-2902, 875 N.E.2d 113 (1st Dist.), at ¶ 23, the appellate court recited the
language of the Civil Rights Act and R.C. 4112.02(A) regarding discriminatory
practices. Specifically, the court stated: “R.C. 4112.02(A) makes it an unlawful
discriminatory practice for any employer, because of the sex of any person, to
discriminate against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or indirectly related to
employment. This includes subjecting the employee to sexual harassment. This
includes subjecting the employee to sexual harassment.” (Emphasis added.) Id.
{¶20} In Egli v. Congress Lake Club, 5th Dist. Stark No. 2009CA00216,
2010-Ohio-2444, at ¶ 30, the appellate court observed that R.C. 4112.02(A)
prohibits sex discrimination in all matters related to employment. Birch v.
Cuyahoga Cty. Probate Court, 173 Ohio App.3d 696, 880 N.E.2d 132, 2007-Ohio-
6189, at ¶ 20. Egli further stated: “Ohio courts apply federal case law interpreting
Title VII of the Civil Rights Act of 1964 to claims arising under R.C. Chapter 4112
to the extent that the terms of the statutes are consistent.” Id., citing Genaro v.
Cent. Transport, Inc., 84 Ohio St.3d 293, 298, 703 N.E.2d 782 (1999), citing
Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm.,
66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981). Our own decision in Harter v.
Chillicothe Long-Term Care, supra, at ¶16, also recognized the Ohio courts’ Ross App. No. 16CA3577 13
practice of applying federal case law interpreting Title VII of the Civil Rights Act
to claims arising under R.C. 4112. Id. at 26.
{¶21} Then, in Persichillo v. Motor Carrier, 156 Ohio App.3d 383, 806
N.E.2d 181 (6th Dist.2004), at ¶ 12, the appellate court recited the R.C. 4112.02(A)
language defining discriminatory practices, previously set forth above. The
Persichillo court further cited the language of Hampel, supra, at ¶ 13:
“The Ohio Supreme Court has held that “[a] plaintiff may establish a violation of R.C. 4112.02(A)'s prohibition of discrimination ‘because of * * * sex’ by proving either of two types of sexual harassment: (1) ‘quid pro quo’ harassment, i.e., harassment that is directly linked to the grant or denial of a tangible economic benefit, or (2) ‘hostile environment’ harassment, i.e., harassment that, while not affecting economic benefits, has the purpose or effect of creating a hostile or abusive working environment.” Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169, 729 N.E.2d 726, paragraph one of the syllabus.”2
{¶22} Similarly, in McPherson v. Goodyear Tire & Rubber, Inc., 9th Dist.
Summit No. 21499, 2003-Ohio-7190, at ¶ 24, the appellate court noted that both
state and federal statutes prohibit discrimination based on gender. See R.C.
2 For this principle, see also Ellis v. Jungle Jim’s Market, Inc., 44 N.E.3d 1034, 2015-Ohio-4226 (12th Dist.), at ¶ 20: “Federal case law interpreting Title VII of the Civil Rights Act of 1964 is generally applicable to cases involving alleged violations of R.C. Chapter 4112.” Bowers v. Hamilton City School Dist. Bd. of Educ., 12th Dist. Butler No. CA2001–07–160, 2002 WL 449499, *3 (Mar. 25, 2002), citing Hampel at 175, 729 N.E.2d 726. Gorawjewski v. Douglas, 6th Dist. Lucas No. L-13-1050, 2014-Ohio- 1296, at ¶ 47. Furthermore, as stated in Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 723, 729 N.E.2d 813 (10th Dist. 2003), pursuant to R.C. 4112.02(A) and Title VII of the Civil Rights Act of 1964, Section 701 et seq., as amended, 42 U.S.C.A.2000(e) et seq. (“Title VII”), sexual harassment that constitutes discrimination on the basis of sex is generally categorized as either a quid pro quo claim or a hostile work environment claim. Our decision in Harter, supra, at ¶ 16, also recited the language explaining that sex discrimination can be proven by demonstrating the two types of sexual harassment: “quid pro quo,” or “hostile work environment.” Ross App. No. 16CA3577 14
4112.02; Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title
42, U.S. Code. The appellate court stated: “Sexual harassment which amounts to
sex discrimination has been generally categorized as either quid pro quo
harassment or a hostile work environment.” Id; See Sheffield Village of Ohio v.
Ohio Civ. Rts. Comm. (June 7, 2000), 9th Dist. Lorain No. 99CA007283.
{¶23} Federal and Ohio case law make it clear that sexual harassment is a
form of sexual discrimination. The definitions provided by the EEOC demonstrate
it is true that one may be harassed without being harassed in a sexual manner, i.e.
racial or other discrimination. The case law also demonstrates that one may be
sexually harassed without being able to prove discrimination, i.e. the grant or
denial of tangible economic benefit or “hostile work environment.” However we
do not agree with Appellee’s counter-argument that because “sexual harassment”
was not explicitly set forth in the parties’ arbitration agreement, the sexual
harassment claim was not intended to be within the scope of the agreement. While
we have found no case law in which this precise question has been answered, we
have reviewed cases in which the appellate courts closely examined contract
language in order to resolve interpretation issues.
{¶24} In Ritchie’s, the trial court found an agreement between parties to be
ambiguous on its face with regard to whether the parties intended to agree to a
subsection within Article 9 of the agreement, entitled “ARCHITECT'S Ross App. No. 16CA3577 15
ADMINISTRATION OF THE CONTRACT.” This court’s decision in Ritchie’s
set forth the generally applicable principles of contract interpretation and
ultimately agreed that the contract was ambiguous as a matter of law. Specifically,
because the contract listed “N/A” under the architect designation, but the parties
did not strike the numerous contract provisions regarding the architect, we found
the contract to be “reasonably susceptible to more than one interpretation.” Id. at
¶ 14.
{¶25} In Buckholtz v. West Chester Dental Group, 12th Dist. Butler No.
CA2007-11-292, 2008-Ohio-5299, the appellate court looked to other language in
an arbitration agreement, along with the American Arbitration Association Rules,
in affirming the trial court’s conclusion that there was no harm or prejudice to
Appellant by a five-month delay in the issuance of an arbitration decision. The
arbitration agreement entered into by the parties did not explicitly state when the
arbitrator's decision was due. However, the agreement stated that the “arbitration
shall be conducted under the commercial arbitration rules of the American
Arbitration Association * * *.” The language of section R-41 of the American
Arbitration Association's (AAA) Commercial Arbitration Rules stated that an
“award shall be made promptly by the arbitrator * * * no later than 30 days from
the date of closing the hearing * * *.” The appellate court also noted there was no
language found in R-41, or any other AAA rule that unequivocally stated that an Ross App. No. 16CA3577 16
arbitrator would lose his jurisdiction by issuing a decision more than 30 days after
closing the hearing.
{¶26} And, in Kinder Morgan Cochan L.L. C. v. Simonson, 2016-Ohio-
4647, 66 N.E.3d 1176 (5th Dist.), the appellate court held that the trial court did
not err in finding that the term “petroleum,” as used in R.C. § 1723.01, a statute
authorizing pipeline developer to enter property for purposes of conducting a
survey, included the natural gas liquids “ethane” and “propane.” In its reasoning,
the appellate court stated: “In construing statutory terms, we are guided by the
legislature's use of the same terms defined elsewhere in the Revised Code. Id. at
21; See Cablevision of the Midwest, Inc. v. Gross, 70 Ohio St.3d 541, 639 N.E.2d
1154 (1994).
{¶27} Here, we do not find the language of the arbitration agreement to be
ambiguous. While we have not found use of the terms “sexual discrimination” and
“sexual harassment” used interchangeably within the Revised Code, we are
mindful of the case law’s repeated instruction that “Ohio courts apply federal case
law interpreting Title VII of the Civil Rights Act of 1964 to claims arising under
R.C. Chapter 4112 * * *.” And, we note the parties’ arbitration agreement
recitation that “The only claims that are arbitrable are those that are justiciable
under applicable federal state or local law.” Sexual harassment is indeed one of
the claims justiciable under applicable federal and state law. Therefore, it is not Ross App. No. 16CA3577 17
unreasonable to conclude that Appellant’s sexual harassment claim is properly
encompassed within sexual discrimination language of the arbitration agreement.
{¶28} While the term “sexual harassment” was not employed in the
arbitration agreement Appellee executed, based on the EEOC’s definitions
provided, along with Ohio’s practice of applying federal law case law interpreting
Title VII of the Civil Rights Act to R.C. 4112, it would not be reasonable to
interpret the parties’ agreement to arbitrate claims for sex discrimination as
excluding claims for sexual harassment. We find provision for Appellee’s sexual
harassment claim well-within the “umbrella” of the sexual discrimination language
of the arbitration agreement.
{¶29} In the trial court and on appeal, Appellee also argued that the
arbitration agreement she executed was unconscionable.
“ ‘Unconscionability has generally been recognized to include an absence of
meaningful choice * * * on the part of one of the parties together with contract
terms which are unreasonably favorable to the other party. Deutsche Bank Natl.
Trust Co. v. Pevarski, 187 Ohio App.3d 455, 2010-Ohio-785, 93 N.E.2d 887 (4th
Dist.), at ¶ 30. Here, Appellee asserted unconscionability, arguing (1) the
arbitration clause language provides that the arbitrator will be either “a retired
judge or an attorney experienced in employment law”; (2) the arbitration
agreement was electronically signed; and (3) the agreement was a prerequisite to Ross App. No. 16CA3577 18
employment. The trial court’s decision and judgment entry did not address the
unconscionability argument but instead, limited its judgment to the narrow issue of
whether Appellee’s claim for sexual harassment was subject to arbitration.
Accordingly, we decline to address Appellee’s unconscionability argument within
the scope of this appeal.
{¶30} In conclusion, based upon our de novo review, we disagree with the
trial court’s finding that Appellee’s claim for sexual harassment does not come
within the purview of the arbitration agreement. For the foregoing reasons, we
find merit to Appellants’ sole assignment of error and it is hereby sustained. We
find the trial court erred as a matter of law in holding that Appellee’s claim for
sexual harassment does not fall within the scope of the parties’ arbitration
agreement because sexual harassment is a form of sexual discrimination.
Accordingly, the judgment of the trial court is reversed.
JUDGMENT REVERSED. Ross App. No. 16CA3577 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and that Appellants recover of Appellee any costs herein.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment Only.
For the Court,
BY: _______________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.