Last week, the Hamilton County Court of Appeals affirmed an employer’s summary judgment on a sexual harassment claim. Klotz v. Game On Sports Bar & Grill, 2022-Ohio-2847. The plaintiff alleged that a co-worker had intentionally harassed her three times on one shift. After conducting an immediate investigation, warning the co-worker, working with the plaintiff so that she would not be alone again with the co-worker, contacting all other female employees and agreeing to not schedule the plaintiff with that co-worker again in the future, the employer warned them both when the plaintiff started a verbal altercation. The court focused only on whether the employer could be held liable for co-worker harassment and concluded that the employer had not been negligent in its response to the plaintiff’s original complaint. Neither the plaintiff nor any other employee suffered harassment before or again after the employer took action. The fact that the employer took action within the week of the complaint and no other incidents were reported was sufficient to prevent liability. “When an employer has actual notice of coworker harassment, an employer generally is entitled to summary judgment on a sexual-harassment claim where the employer’s response was aimed at preventing, and did prevent, future harassment.”
According to the Court’s decision, the employer never
published a sexual harassment policy. The
plaintiff bartender alleged that the fill-in cook intentionally thrusted his
pelvis into her buttocks area three times on the first night that they were
scheduled to work together alone. Three
other servers had mentioned to the owner’s wife only a few days earlier that
the same cook had made them uncomfortable by invading their personal space in
tight spaces. However, they later denied
that they felt sexually harassed and did not think it was worth mentioning to
management. The owner met with the cook,
who denied the allegations, reviewed video surveillance from the evening in
question (which did not substantiate the allegations) and warned the
cook that he would be fired if there were any further similar incidents. No documentation was placed in the cook’s
personnel file. The owner however texted all female employees
about having warned the cook and encouraged them to report any further
inappropriate incidents by him, another employee or guest. No one did.
When, the plaintiff objected to working alone again with the cook the
following week on a pre-scheduled shift, the owner agreed to work with her,
agreed to never schedule them together again and offered to review the video
footage with her to get additional context.
When she started a fight with the cook at the end of the shift, the owner
told them to stop and she resigned without ever reviewing the video. Later, the owner reported the incident to the
police, who also reviewed the video and declined to press charges.
The plaintiff’s claim was for hostile work environment by a
co-worker. Under Ohio law,
In order to establish a claim of hostile-environment sexual harassment, the plaintiff must show (1) that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the “terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment,” and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.
In short, an employer is only liable for co-worker harassment
when its own negligence leads to a continuation of the hostile work environment
or causes harassment. “The Sixth Circuit Court of Appeals has held an employee
must show that the employer’s response to the employee’s complaints manifested
an indifference or unreasonableness considering the facts the employer knew or
should have known.”
While the absence of a sexual harassment policy could have
caused the employer to lose an affirmative defense if the alleged harasser had
been a supervisor, it was not a factor in co-worker harassment. Supervisor harassment can cause vicarious liability,
while co-worker harassment is evaluated with a negligence standard. Further, the plaintiff made the complaint to
the owner even in the absence of a sexual harassment policy. “Thus, it is too
speculative to conclude in this case that the lack of written sexual-harassment
policy caused the sexual harassment or led to the continuation of the claimed
hostile-work environment.”
The actions taken by the employer in the week following the
plaintiff’s complaint were effective and sufficient to prevent additional
incidents and to avoid liability.
Here, the evidence demonstrates Game On took Klotz’s allegation seriously by (1) issuing a warning to McCoy within hours of Klotz’s complaint, (2) contacting Klotz and all the female servers to urge them to come forward immediately if they experienced anything inappropriate, and (3) taking steps to ensure that Klotz never had to be alone with McCoy again. These actions were undisputedly effective in preventing future harassment.
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.
