The basis for the Court’s Hauser holding is that the statutory language in R.C. §4112.01(A)(2)
was based on language in the National Labor Relations Act which the U.S.
Supreme Court had previously held only established respondeat superior liability. The Court also observed that the General
Assembly knew how to establish individual liability because it had done so in a
different provision of the Ohio Civil Rights Act at R.C. §4112.02(J) and (G):
If we were to conclude that the employer-discrimination
provision in R.C. 4112.02(A) expressly imposes liability on employees, we would
render the aiding-and-abetting provision in R.C. 4112.02(J) largely
superfluous. That provision already holds individual employees liable for their
participation in discriminatory practices. This context supports our
determination that R.C. 4112.01(A)(1) and 4112.02(A) subject employers to
vicarious liability and do not expressly impose liability on individual
employees.
The Court
also noted – as did the Genaro court –
that the federal courts do not impose individual liability based on similar
language in Title VII. Moreover, the
Ohio Civil Rights Act exempts smaller employers (with fewer than four
employees) and that is inherently inconsistent with imposing individual
liability. “Reading the statute to simultaneously exempt a
small-business owner from liability yet impose liability on any individual
working for a larger company obstructs this purpose. If a statute is
susceptible to different meanings, we should favor the meaning that “furthers
the legislative purpose” over the meaning that obstructs or hinders that
purpose.”
In his dissent,
Justice O’Neil observed that while he did not agree with the Court’s 1999
Genaro decision, he
felt it controlled the outcome in this decision. As reflected in the discussion of the Genaro decision below, I would have to
agree. This might have been as good of
an opportunity as any to explicitly overrule Genaro, but that did not happen.
In Genaro,
the Supreme Court considered the respondeat liability argument it adopted
today, but nonetheless ruled that individual liability existed based on public
policy and the exact same language that the Court held today imposed only
vicarious liability:
R.C. 4112.01(A)(2) defines
“employer” as “any person employing four or more persons within the state, and any
person acting directly or indirectly in the interest of an employer.” (Emphasis
added.) . . . It is clear that the R.C.
4112.01(A)(2) definition of “employer,” by its very terms, encompasses
individual supervisors and managers whose conduct violates the provisions of
R.C. Chapter 4112.
. . .
As previously set
forth herein, R.C. 4112.01(A)(2) defines “employer” as “any person employing
four or more persons within the state, * * * and any person acting directly
or indirectly in the interest of an employer.” (Emphasis added.) In contrast,
under Title VII, “employer” is defined as “a person engaged in an industry
affecting commerce who has fifteen or more employees * * * and any agent
of such a person.” (Emphasis added.) Section 2000e(b), Title 42, U.S. Code.
The differing numerosity requirements and uses of agency terminology indicate
that Title VII’s definition of “employer” is far less reaching than the encompassing
language of R.C. 4112.01(A)(2). Without doubt, the language employed by the
General Assembly with regard to R.C. 4112.01(A)(2) is much broader in scope
than that employed by the analogous Title VII provision.
. . .
Based on the
foregoing, we believe that the clear and unambiguous language of R.C.
4112.01(A)(1) and (A)(2), as well as the salutary antidiscrimination purposes
of R.C. Chapter 4112, and this court’s pronouncements in cases involving
workplace discrimination, all evidence that individual supervisors and managers
are accountable for their own
discriminatory conduct occurring in the workplace environment. Accordingly, we
answer the certified question in the affirmative and hold that for purposes of
R.C. Chapter 4112, a supervisor/manager may be held jointly and/or severally
liable with her/his employer for discriminatory conduct of the
supervisor/manager in violation of R.C. Chapter 4112.
In Hauser, the
Court attempted to distinguish Genaro,
but simply questioned its validity instead of overruling it:
The certified question in Genaro involved private-sector
supervisors and managers, and it asked only whether such persons may be jointly
and severally liable with an employer for conduct “in violation of R.C. Chapter
4112.” Id. at 293, 300. We did not address whether the
employer-discrimination provision in R.C. 4112.02(A) “expressly imposed” civil
liability on a political subdivision employee for purposes of the immunity
exception in R.C. 2744.03(A)(6)(c). To
be sure, our reasoning in this case calls the Genaro majority’s
reasoning into question, particularly its basis for distinguishing the prevailing
interpretation of Title VII. See Genaro at 299 (declaring R.C. 4112.01(A)(2)’s
definition of employer to be “broader” than Title VII’s definition). But
because Genaro did not squarely address the immunity question at issue
here, it is not binding authority, and we need not apply Westfield Ins. Co. v.
Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, to decide whether
we should overrule it. (emphasis added).
In that the public-private distinction seems irrelevant to
whether the statutory language in question exists to impose respondeat superior liability as the
Court now holds or individual liability as the Genaro court held in 1999, it seems likely that the Court would overrule Genaro if a better opportunity presented
itself. The question now is whether
trial and appellate courts will take that opportunity to put the question
before the Court in light of the Court’s apparent invitation (above) to do so.
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
