Kerans v. Porter Paint Co.

575 N.E.2d 428, 61 Ohio St. 3d 486, 10 I.E.R. Cas. (BNA) 1760, 1991 Ohio LEXIS 2081, 63 Fair Empl. Prac. Cas. (BNA) 570
CourtOhio Supreme Court
DecidedAugust 21, 1991
DocketNo. 90-1036
StatusPublished
Cited by128 cases

This text of 575 N.E.2d 428 (Kerans v. Porter Paint Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kerans v. Porter Paint Co., 575 N.E.2d 428, 61 Ohio St. 3d 486, 10 I.E.R. Cas. (BNA) 1760, 1991 Ohio LEXIS 2081, 63 Fair Empl. Prac. Cas. (BNA) 570 (Ohio 1991).

Opinions

Alice Robie Resnick, J.

We must first address appellee’s contention that the appellants’ claims are barred by R.C. 4123.74. R.C. 4123.74 provided, in pertinent part, “Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment * * *.” 128 Ohio Laws 1334. Appellee claims that under this statute, the appellants may not bring any cause of action against it except those authorized by this court in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, and its progeny, which shall be discussed infra. See, also, Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108.

There are several difficulties with appellee’s argument. First, it assumes that appellant’s injury is an injury within the meaning of R.C. 4123.74, that is, within the definition of “injury” in R.C. 4123.01. We are not prepared to so [489]*489hold at this time.2 The injury alleged by the appellant in this case is a nonphysical injury with purely psychological consequences. In Ryan v. Connor (1986), 28 Ohio St.3d 406, 28 OBR 462, 503 N.E.2d 1379, we held that a physical injury occasioned solely by mental or emotional stress received in the course of employment is an “injury” within the definition found in R.C. 4123.01(C). In that case, the plaintiff suffered a heart attack and died after being pressured into an early retirement by company officials. While the harm suffered by appellant in the case at bar was also occasioned by emotional stress, the alleged consequence, the development of post-traumatic stress disorder, is purely psychological.

Since this court’s ruling in Ryan, supra, the legislature has not amended the definition of “injury” in R.C. 4123.01(C) to include psychiatric ailments resulting solely from stressful workplace conditions. In fact, R.C. 4123.01(C) now specifically states that “injury does not include * * * psychiatric conditions except where the conditions have arisen from an injury or occupational disease.” In light of this limitation, we are not prepared to assume that psychological disturbances arising solely from emotional stress in the workplace fit within the definition of “injury” in R.C. 4123.01.

If the workers’ compensation scheme were adjudged to be the exclusive remedy for claims based upon sexual harassment in the workplace, as appellee urges, victims of sexual harassment would often be left without a remedy. Generally, injured employees receive coverage only for economic losses resulting from their accidents — medical bills, lost wages, and diminished earning capacity. However, aside from expenses which they may incur for psychiatric care, victims of sexual harassment generally do not suffer economic loss. Their injuries are much less tangible and often are not susceptible to a neat compensatory formula. Thus, even if this court were to hold that psychiatric conditions resulting solely from emotional stress in the workplace are compensable under the workers’ compensation scheme, most victims would not obtain appropriate or sufficient relief.

The mismatch between the workers’ compensation laws and claims arising out of sexual harassment in the workplace was recently recognized by the Florida Supreme Court in Byrd v. Richardson-Greenshields Securities, Inc. (Fla.1989), 552 So.2d 1099. In that case, the court specifically held that Florida’s workers’ compensation statute does not provide the exclusive reme[490]*490dy for claims based on sexual harassment in the workplace. In justifying its holding, the court stated: “ * * * workers’ compensation is directed essentially at compensating a worker for lost resources and earnings. This is a vastly different concern than is addressed by the sexual harassment laws. While workplace injuries rob a person of resources, sexual harassment robs the person of dignity and self esteem. Workers’ compensation addresses purely economic injury; sexual harassment laws are concerned with a much more intangible injury to personal rights. * * * ” Id. at 1104.

The scope and purpose of Ohio’s workers’ compensation scheme do not differ from Florida’s in any aspect which is relevant to the question before us. As in Florida, it would contravene the legislative intent behind the workers’ compensation laws for this court to hold that those laws provide the exclusive remedy for victims of workplace sexual harassment. Consequently, we reject appellee’s argument that the appellants’ claims are barred by R.C. 4123.74.

Appellee argues that even if appellants’ claims are not barred by R.C. 4123.74, appellee cannot be held liable for its employee’s intentional acts since the activities which form the basis of the complaint took place outside the scope of the perpetrator's employment. Appellee contends that because it did not hire Levine to sexually harass female employees, and because Levine’s actions in no way facilitated appellee’s business, it may not be held liable for the harm which resulted from his egregious behavior. In support of this contention, appellee invokes this court’s decision in Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584, citing Taylor v. Doctors Hosp. (1985), 21 Ohio App.3d 154, 21 OBR 165, 486 N.E.2d 1249.

Our response to this argument is twofold. First, we find that there is a genuine issue of material fact as to whether Levine’s actions took place within the scope of his employment with the Porter Paint Company. 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. 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. Meritor Sav. Bank, FSB v. Vinson (1986), 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49; Yates v. Avco Corp. (C.A.6, 1987), 819 F.2d 630; Shrout v. Black Clawson Co. (S.D. Ohio 1988), 689 F.Supp. 774. Thus, in Shrout, supra, the court held that “[bjecause the harassment took place during working hours, at the office, and was carried out by someone with the authority to hire, fire, promote and discipline the plaintiff, * * * [the harassing employee’s] conduct took place in the scope of his employment.” Id. at 781.

[491]*491In the case at bar, there is a genuine issue of material fact regarding the extent of Levine’s authority. While appellee contends that Levine was not Kerans’s supervisor, there is evidence in the record which suggests that he did hold that position vis-a-vis both Kerans and some of those who preceded her as decorator at the Kenwood store. Moreover, there is evidence in the record which suggests that Levine had the authority to control Kerans’s work hours and time of departure from the Kenwood store. If he did have this authority, and if he used this authority to cause Kerans to feel that she had to endure his advances in order to keep her job, then a jury could reasonably find that he acted within the scope of his employment.

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575 N.E.2d 428, 61 Ohio St. 3d 486, 10 I.E.R. Cas. (BNA) 1760, 1991 Ohio LEXIS 2081, 63 Fair Empl. Prac. Cas. (BNA) 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerans-v-porter-paint-co-ohio-1991.