concurring specially.
I concur in the judgment and with the majority’s conclusion that the actions attributed to Taylor were entirely personal to him and were not within the scope of his employment with TPA. I disagree, however, with that part of Division 1 of the majority opinion that states that Wiley v. Ga. Power Co., 134 Ga. App. 187 (213 SE2d 550) (1975), overruled on other grounds, Ga. Power Co. v. Busbin, 242 Ga. 612, 615 (250 SE2d 442) (1978); Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670 (347 SE2d 619) (1986); Trimble v. Circuit City Stores, 220 Ga. App. 498 (469 SE2d 776) (1996); and Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636 (484 SE2d 659) (1997) should be overruled. A majority of judges must concur in a decision to overrule a prior decision of this court. OCGA § 15-3-1 (d). Because the court is equally divided on the issue of whether those cases should be overruled, the cases are not overruled and remain binding precedent. See id.; see also Moak v. State, 222 Ga. App. 36, 43 (473 SE2d 576) (1996) (Birdsong, P. J., concurring specially). The majority opinion, however, is not binding precedent. Court of Appeals Rule 33 (a).
*10I also disagree with the majority opinion because it is not necessary to overrule those cases; they are distinguishable from this case.
In Wiley, the employer knew that one of its supervisors was sexually molesting the plaintiff and retained him, allowing him to continue to harass and abuse her until she (not he) was ultimately terminated. The supervisor’s actions were clearly outside the scope of his employment, but issues of fact remained as to whether the employer was liable for ratifying those actions. Wiley, supra at 192-193 (4).
In Newsome, the employer knew of previous problems with a supervisor who allegedly subjected his secretary to sexual harassment. The secretary was fired one month after she reported the harassment for being a “chronic complainer”; the supervisor was retained. Relying on Wiley, this court held that material issues of fact remained about whether the employer had ratified the supervisor’s alleged misconduct. Newsome, supra at 673 (4).
Trimble and Mears merely stated that an employer cannot be vicariously liable for an employee’s intentional harassment of another employee unless the employer ratified the employee’s actions. Trimble, supra at 501; Mears, supra at 641 (2) (c). Trimble did not analyze the issue of ratification or attempt to apply it to the facts of the case. In Mears, this court found no evidence that the employer had ratified the employee’s alleged sexual harassment. Mears, supra.
Unlike the employers in Wiley and Newsome, TPA responded promptly when informed of Taylor’s actions. At Hooper’s request, TPA allowed Taylor to remain employed. As a condition of that continued employment, Taylor was precluded from communicating with Hooper, except through his supervisor. When he violated that condition, Taylor was terminated. Under the circumstances, summary judgment was appropriate on the issue of ratification.
In addition, the cases should not be overruled because the facts in Wiley and Newsome demonstrate the need for the continued viability of a claim that an employer ratifies an employee’s acts of sexual harassment in certain circumstances. In Piedmont Hosp. v. Palladino, 276 Ga. 612 (580 SE2d 215) (2003), the Supreme Court of Georgia effectively held that no employer could ever be held liable for an employee’s sexual misconduct, no matter how closely connected such conduct maybe with the employee’s duties. Id. at 617 (Carley, J., dissenting). The majority seeks to take that ruling one step further by effectively precluding an employer from ever being held liable for ratifying an employee’s acts of sexual misconduct against another employee, no matter how inappropriately the employer responds to the victim’s accusations of misconduct.
*11Whether an act was committed within the scope of employment should be a separate, albeit related, inquiry from whether an employee ratified an act after its commission. “Generally, an employer may be held responsible for the tortious act of an employee where the act was authorized by the employer prior to its commission, ratified by the employer after its commission, or committed within the scope of the employment.” Hobbs v. Principal Financial Group, 230 Ga. App. 410, 411 (497 SE2d 243) (1998) (citations and punctuation omitted; emphasis supplied); Modern Woodmen of America v. Crumpton, 226 Ga. App. 567, 568 (487 SE2d 47) (1997); Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 414 (265 SE2d 335) (1980); see also Stewart v. Storch, 274 Ga. App. 242 (617 SE2d 218) (2005) (determination of whether landlord ratified acts of sexual harassment by its property manager analyzed separately from whether acts were committed within the scope of property manager’s agency). If the ratification issue could be resolved solely by determining whether the employee was acting within the scope of his employment, there would be no need for the disjunctive “or” included in the general rule.
An employer’s ongoing tolerance of tortious conduct, such as sexual harassment, logically amounts to ratification of that conduct. I depart from the majority because I believe that the employer who ratifies acts of sexual harassment should not be shielded from liability by the fact that the sexual harassment occurred outside the scope of the employment or the fact that the employer did not specifically sanction the acts of harassment. See Wiley, supra, and Newsome, supra; see also Machen v. Childersburg Bancorporation, 761 S2d 981, 984-986 (Ala. 2000) (employer ratifies acts of sexual harassment if it expressly adopts misconduct or implicitly approves it); Murillo v. Rite Stuff Foods, 77 Cal. Rptr. 2d 12, 24 (1998) (principal is liable when it ratifies an originally unauthorized tort); Delaney v. Skyline Lodge, 642 NE2d 395, 402 (Ohio Ct. App. 1994) (employer potentially liable for punitive damages for ratifying acts of sexual harassment); Wirig v. Kinney Shoe Corp., 448 NW2d 526, 534 (Minn. Ct. App. 1989), rev’d in part on other grounds, 461 NW2d 374 (Minn. 1990) (employer may ratify or approve acts of employee by failing to discharge or reprimand agent for sexual harassment); Brown v. Burlington Indus., 378 SE2d 232, 236 (N.C. Ct.App. 1989) (jury may find ratification of sexual misconduct from any course of conduct by employer which tends to show intention to ratify unauthorized acts; course of conduct may involve omission to act).
I am authorized to state that Presiding Judge Smith, Judge Barnes, Judge Miller and Judge Adams concur in this opinion.
*12Decided December 1, 2005 — Reconsideration denied December 15, 2005 Holland & Knight, Mary Ann B. Oakley, Lindsey G. Churchill, for appellants. Orr & Orr, Kristine E. Orr, E. Wycliffe Orr, Sr., for appellee.