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Court News Ohio
Court News Ohio

Public Employees Not Liable for Employment Discrimination in Certain Cases

Laws do hold employers liable, however

A supervisor in the Dayton Police Department is immune from civil liability in a sex discrimination lawsuit filed by a police officer, the Ohio Supreme Court ruled today.

The court held that two provisions in Ohio law make political subdivisions liable for the discriminatory actions of their employees but do not expressly impose individual liability on employees of political subdivisions.

Written by Justice Judith L. French, the decision reverses the judgment of the Second District Court of Appeals and addresses a conflict between appeals courts on the issue.

Anita Hauser worked as a police officer in the Dayton Police Department under the supervision of Major E. Mitchell Davis. Hauser filed a lawsuit against the department and Davis, claiming they treated her differently by insisting on certain employment conditions, withholding her wages, subjecting her to “frivolous” investigations, and denying her career opportunities.

The trial court granted summary judgment to the department and Davis on most of Hauser’s allegations, except for her sex discrimination claim. But the court denied immunity to Davis.

Davis appealed to the Second District, which agreed with the trial court that he was not immune from liability. The appeals court also notified the Supreme Court that the decision conflicted with a judgment from the Eighth appellate district.

While political subdivisions and their employees are generally immune from liability in civil actions, there are some exceptions. R.C. 4112.02(A) states that it is illegal for any employer to discriminate based on several grounds, including the sex of an employee. R.C. 4112.01(A)(2) defines “employer” as “the state, any political subdivision of the state, any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.”

In today’s opinion, Justice French cites the U.S. Supreme Court’s decision in Packard Motor Car Co. v. Natl. Labor Relations Bd. (1947). When interpreting the language “any person acting in the interest of an employer, directly or indirectly” in the federal definition of “employer,” the U.S. Supreme Court determined that the phrase’s purpose was to hold employers responsible for the actions of employees acting in the employer’s interest, Justice French explained.

“Whether we agree or disagree with the Packard court’s construction, we cannot ignore Packard’s historical relevance when examining the General Assembly’s use 12 years later of the same language [in Ohio’s definition of ‘employer’] — ‘any person acting in the interest of an employer’ — in what continues to be the essence of current R.C. 4112.01(A)(2),” she wrote. “Giving this phrase the meaning it had ‘at the time’ of its enactment, we read it to mean what the United States Supreme Court said it meant: an employer faces ‘respondeat superior’ liability ‘for acts of any persons performed in [the employer’s] interests.’ … Respondeat superior speaks only to the vicarious liability of an employer; it does not simultaneously create an express cause of action against individual agents and servants of the employer.”

She also pointed out that the Ohio General Assembly has clearly made individuals liable for discriminatory actions in other parts of R.C. 4112.02, which supports the conclusion that individual employees are not liable under R.C. 4112.01(A)(2) and R.C. 4112.02(A).

Looking at the legislative intent of R.C. Chapter 4112 and viewing the statute in that context, Justice French concluded that the two provisions at issue in this case “do not expressly impose civil liability on political-subdivision employees so as to exempt them from immunity …, but rather subject a political-subdivision employer to vicarious liability for the discriminatory acts of its employees.”

“We underscore, however, that our conclusion is limited to the provisions dealing with ‘employer’ discrimination, R.C. 4112.01(A)(2) and 4112.02(A),” she continued. “An individual political-subdivision employee still faces liability under other provisions of R.C. 4112.02 that expressly impose liability ….”

In addition, the assertion that the court must follow its earlier decision in Genaro v. Cent. Transport, Inc. (1999) does not hold up under closer examination, Justice French wrote. That case involved a private employer and did not address the immunity of public employees, so the decision is not binding on this case, she reasoned.

Justice French’s opinion was joined by Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger. Justice Terrence O’Donnell concurred only in the judgment of the court.

Justice Paul E. Pfeifer wrote a dissent that Justice William M. O’Neill joined. Justice Sharon L. Kennedy dissented separately.

In his dissent, Justice Pfeifer contended that any type of immunity for political subdivisions and their employees is unconstitutional. The court also misinterprets the definition of “employer,” he added.

“It is clear that Major Davis was acting in the interest of an employer when he allegedly discriminated against Anita Hauser,” he wrote. “According to the statutory scheme, a person acting in the interest of an employer is an ‘employer’ and is subject to liability. The lead opinion in essence concludes that an employee of a political subdivision who discriminates illegally is not a ‘person acting directly or indirectly in the interest of an employer.’”

In her dissent, Justice Kennedy wrote that the Ohio Supreme Court already ruled in Genaro that R.C. 4112.01(A)(2) holds individual supervisors and managers responsible for their discriminatory conduct in the workplace. Given that case and the definition of “employer,” she concluded that Davis is liable for any discriminatory actions as Hauser’s supervisor.

“This provision, in conjunction with Genaro, expressly imposes civil liability for discriminatory acts on the state and its supervisory employees,” she reasoned. “In fact, imposing such liability is a main purpose of the statute.”

“While I disagree with the holding in Genaro, it has been the law of Ohio since 1999, and my duty is to apply it.”

2013-0291 and 2013-0493. Hauser v. Dayton Police Dept., Slip Opinion No. 2014-Ohio-3636.

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