No one should be forced to endure sexual harassment to earn a living. But Wille's silence for two years, coupled with her abrupt departure from her employer in the midst of policy changes resulting from meetings between Wille, her lawyer, and Hunkar, distinguishes this case from the usual hostile-environment claim. *Page 110
The evidentiary materials in the record are conclusive and the majority's analysis seems to concede that there was no tangible adverse employment action taken against Wille. Accordingly, her hostile-environment claim against her employer is not determined by a strict-liability standard. As the majority, correctly concludes, Wille's claim, under R.C. Chapter 4112, that she was sexually harassed by her supervisor, Fricke, if proven, imputes liability to her employer pursuant to principles of vicarious liability. Burlington Industries, Inc. v.Ellerth; Faragher v. Boca Raton. Neither the trial court nor counsel, however, had the benefit of Ellerth and Faragher when summary judgment was granted for the corporate employer.
Pursuant to Civ.R. 56, I agree with the majority that Wille's allegations, reviewed in their most favorable light, present genuine issues of material fact that the alleged behavior was based on sex and was unwelcome. I question, however, whether, under a reasonable-person standard, the eight instances of harassment over two years specifically identified by the majority — six verbal and two involving touching — are severe and pervasive enough to establish a hostile-environment claim under Meritor Sav. Bank FSB v. Vinson.22 InSprague v. Thorn Americas, Inc.,23 for example, five sexual incidents over sixteen months was not deemed sufficiently severe and pervasive so as to create a hostile environment.
The essence of Wille's claim is that her supervisor's acts created an abusive working environment.24 In her deposition, however, she admitted she always performed her job well, never missed a day of work or took sick leave, and never complained to her employer until six weeks before she quit.25
Even if it is assumed, as the majority contends, that the record raises genuine issues of material fact to satisfy a prima facie case of supervisor sexual harassment under Ellerth and Faragher, Wille's employer is still entitled to summary judgment because, as a matter of law, it must prevail on its affirmative defense. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage *Page 111 of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."26
Here, the corporate employer did not have a formal policy on sexual harassment. This fact is not dispositive of whether it failed to exercise reasonable care to prevent and correct promptly sexually harassing behavior. The Faragher court observed that small employers may comply with less formal procedures.27 Here, the company had twenty-seven employees. It is undisputed that the corporate president and CEO, Denes Hunkar, had an open-door policy and encouraged employees to come to him with their problems. Unlike the grievance procedure in Faragher, Hunkar's open-door policy allowed an employee to bypass the harassing supervisor to complain.
Immediately after Wille complained, Hunkar notified the board of directors. Two days after receiving the letter of June 25, 1996 from Wille's attorney outlining her complaints, he ordered the "broken cherry award" discontinued and its display in the office banned. Hunkar arranged a meeting at which he and the company's attorney addressed Wille's concerns with Wille and her attorney. Following the meeting, he conducted an investigation and ultimately reprimanded Fricke. With the assistance of Wille and her attorney, the company established a formal sexual-harassment policy and required company employees to attend a video program on sexual harassment. Whenever she felt uncomfortable, Wille was to notify the company's inside sales manager, Jeannie Martin, or her own attorney. This procedure was acceptable to Wille. Although she conceded in her deposition that there was no further sexual harassment after she initially complained to her immediate supervisor, Charles Koehler, she, nevertheless, tendered her resignation thirty-three days after the initial June 27, 1996 meeting.
The employer's open-door policy provided a reasonable means to prevent and to correct promptly any sexual harassment. Wille did not take advantage of it for two years. Then she summoned her lawyer to deliver her complaints. After the company developed a new policy with the assistance of Wille and her lawyer, she resigned even though she experienced no other incidents of sexual harassment. In view of her decision to use her lawyer as her messenger, it is now disingenuous for Wille to maintain that Hunkar's open-door policy was ineffective because he was also a harasser. The company suggests that she tired of sales and opted for a career move to her personal-training and fitness business. In my view there is no genuine issue of material fact remaining that precludes the entry *Page 112 of judgment. Wille unreasonably failed to take advantage of any preventive or corrective opportunities.
I also disagree with the majority that Hunkar, as president and CEO of the corporation, can be individually liable for a common-law Kerans tort. The rule in Kerans is based upon the employer's failure to provide a safe workplace, rendering the employer liable in tort where the employer knew or should have known of the supervisor's past history of behavior involving sexual harassment. It is a claim against the employer and not the harasser. To create a claim of individual liability by means of a Kerans tort requires reference to the statutory definition of "employer" in R.C. 4112.01(A)(1), since Kerans does not mention individual liability.28
To determine if a prima facie case of discrimination has been established under R.C. Chapter 4112, the Ohio Supreme Court has directed inferior courts to look to federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code.29 Although individual liability of the harasser may be appropriate under other state tort claims, the majority of federal courts, including the Sixth Circuit Court of Appeals, have held that Title VII does not provide for a claim of individual liability.30 The majority cites our decision in Hart v. Justarr, which recognized in reliance on Seiber the individual liability of a supervisor who knew of the harassment. I am persuaded that both cases have been superseded by the later federal precedents.
The issue of whether a supervisor can be jointly and severally liable with his employer for behavior in violation of R.C. Chapter 4112 is currently under consideration by the Ohio Supreme Court.31 In the absence of guidance to the contrary from the Ohio Supreme Court, we ought to follow federal case law and not permit an individual-liability claim.
Therefore, I respectfully dissent.
22 Mentor Sav. Bank FSB v. Vinson (1956), 477 U.S. 57, 67,106 S.Ct. 2399, 2405, 91 L.Ed.2d 49, 59-60.
23 Sprague v. Thorn Americas, Inc. (C.A.10, 1997), 129 F.3d 1355.
24 See, e.g., Delaney v. Skyline Lodge, Inc. (1994),95 Ohio App.3d 264, 642 N.E.2d 395.
25 See Jones v. Clinton (E.D.Ark. 1998), 990 F. Supp. 657, 675.
26 Burlington Industries, 524 U.S. at 765, 118 S.Ct. at 2270,141 L.Ed.2d at 655; Faragher, 524 U.S. at 807, 118 S.Ct. at 2293,141 L.Ed.2d at 689.
27 Faragher at 807-809, 118 S.Ct. at 2293, 141 L.Ed.2d at 688-690.
28 Seiber v. Wilder (Oct. 12, 1994), Greene App. No. 94 CA 32, unreported, 1994 WL 558969.
29 Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 582,664 N.E.2d 1272, 1276; see, also, Weiper v. W.A. Hill Assoc. (1995),104 Ohio App.3d 250, 264, 661 N.E.2d 796, 805; Murray v. Mount WashingtonCare Center (Dec. 26, 1997), Hamilton App. Nos. C-960654 and C-960664, unreported, 1997 WL 789716.
30 Wathen v. General Electric Co. (C.A.6, 1997), 115 F.3d 400.
31 See Genaro v. Cent. Transport, Inc. (1997), 80 Ohio St.3d 1412,684 N.E.2d 705, and (1999), 84 Ohio St.3d 293, 703 N.E.2d 782. *Page 113