The Ohio Supreme Court recently held that public employees are not personally liable under certain Ohio anti-discrimination laws, but their actions may subject their political-subdivision employers to vicarious liability.
At the same time, the Court indicated that its decision in Hauser v. City of Dayton Police Dep’t, et. al, 2014-Ohio-3636, calls into question whether supervisors and managers of private-sector employers should be held personally liable under Ohio Rev.Code 4112 for discriminatory conduct, as they are now.
Given the right case, it is possible that the Court could decide that, like their public-sector brethren, supervisors and managers of private-sector employers may not be held personally liable for discriminatory conduct.
In Hauser, the Court held that a police supervisor was immune from civil liability in a sex discrimination lawsuit brought by a police officer.
The officer in the case, Anita Hauser, alleged that the Dayton Police Department and her supervisor, Major E. Mitchell Davis, treated her differently than male police officers, withheld her wages, subjected her to frivolous investigations and denied her opportunities for career advancement all because of her gender.
Generally, public employees are immune from tort liability under Ohio law, with limited three exceptions. One of those exceptions is when the Ohio Revised Code expressly imposes civil liability on the employee.
The issue in Hauser was whether Ohio Rev.Code 4112.02(A), which makes it unlawful for “any employer” to discriminate on the basis of certain protected characteristics like gender, expressly imposes liability against political-subdivision managers and supervisors like Major Davis.
The rub hinged on the General Assembly’s definition of “employer” as “any person acting directly or indirectly in the interest of an employer.”
The Second District Court of Appeals held that Major Davis fit squarely within that definition because he was acting in the interest of the Dayton Police Department. As a result, the Second District held, he could be held individually liable.
The Supreme Court disagreed based on the statutory and historical context of the words chosen by the General Assembly in drafting the law in 1959.
“When the General Assembly selected that phrase, it had already acquired a particular meaning in the context of employment-practices legislation,” Justice Judith L. French wrote for the majority. “Twelve years earlier, the United States Supreme Court constructed the same definition of employer — ‘any person acting in the interest of an employer, directly or indirectly — in the context of the National Labor Relations Act of 1935… to render employers responsible … for acts of any persons performed in their interests.”
Thus, the Court held, Ohio Rev.Code 4112.02(A) subjects a political-subdivision employer to vicarious liability for the discriminatory acts of its employees. It does not impose civil liability on the public employee.
While public employees are immune under Ohio Rev.Code 4112.02(A), the Court pointed out that public employees may still be held liable under other sections of the Revised Code that do impose individual liability, such as for aiding-and-abetting discriminatory practices.
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