Dissenting.
Today’s majority opinion effectively overrules Hilen v. Hays and its progeny and repeals Kentucky’s comparative fault statute, KRS 411.182. I dissent because I believe that the General Assembly deliberately abrogated the common law doctrine of equitable implied indemnity between *783joint tortfeasors when it adopted KRS 411.182. Accordingly, I believe the trial court in each of these cases properly dismissed the third party complaint. In addition, I believe the trial judge in Salazar v. Korp II Ltd. Partnership, etc., properly held that Korp II could not maintain an indemnity action against Salazar because an individual perpetrator of sexual harassment who is not the plaintiffs employer has not breached any duty created by KRS 844.450.
INDEMNITY AND COMPARATIVE FAULT
The general rule at common law provided “that a joint tort feasor who is compelled to pay damages for the negligent or tortious act of another is not entitled to indemnity from the latter,”1 but an exception to this general rule allowed a tortfea-sor whose responsibility for a plaintiffs damages was less than that of a joint tortfeasor (or, in the parlance of the common law, who was not “in pari delicto— equal fault” with the joint tortfeasor) to obtain complete indemnity from the other party. In Brown Hotel Co. v. Pittsburgh Fuel Co.,2 the predecessor to this Court recognized that KRS 412.030, which authorized contribution among joint tortfeasors in pari delicto,3 “abrogated the so-called general rule but made no change in the exception which allows a right to indemnity where the person seeking it and the person from whom it is sought are not in pari delicto.”4 The remaining right to indemnity, known generally after the opinion as “Brown Hotel indemnity” existed:
Where one of two parties does an act or creates a hazard and the other, while not concurrently joining in the act, is, nevertheless, thereby exposed to liability to the person injured, or was only technically or constructively at fault, as from the failure to perform some legal duty of inspection and remedying the hazard, the party who was the active wrongdoer or primarily negligent can be compelled to make good to the other any loss he sustained.5
This exception “allows the right of indemnity where the person seeking it and the person from whom it is sought are not in pari delicto, as where the party who was compelled to pay the damages was less culpable than the other wrongdoer, although both were equally liable to the person injured.”6 Indemnity among joint tortfeasors did not derive from a statute, “but stands entirely on principles of equity,” 7 and is “based upon or spring[s] from the idea of equalization of burden.”8
In Hilen v. Hays,9 this Court again departed from the common law of this state by discarding contributory negligence in favor of comparative negligence and justified the departure by stating:
In broad outline, stare decisis directs us to “stand by” our previous decisions unless there are sound legal reasons to the contrary. Every case must be decided with a respect for precedent. But the doctrine of stare decisis does not commit us to the sanctification of ancient fallacy. In Goetzman v. Wichern, 327 N.W.2d 742 (Iowa 1983), the Supreme Court of Iowa observed:
‘(S)tare decisis does not preclude the change. That principle does not require blind imitation of the past or adherence to a rule ... We must reform common law doctrines that are *784unsound and unsuited to present conditions.’ Id. at 753.
The common law is not a stagnant pool, but a moving stream. City of Louisville v. Chapman, Ky., 413 S.W.2d 74, 77 (1967). It seeks to purify itself as it flows through time. The common law is our responsibility; the child of the courts. We are responsible for its direction. In International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918), Mr. Justice Brandéis wrote:
‘The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle.’ 248 U.S. at 262, 39 S.Ct. at 81.
Mr. Justice Sutherland wrote in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933):
‘(T)o say that the courts of this country are forever bound to perpetuate such of its rules as, by every reasonable test, are found to be neither wise nor just, because we have once adopted them as suited to our situation and institutions at a particular time, is to deny to the common law in the place of its adoption a ‘flexibility and capacity for growth and adaptation’ which was ‘the peculiar boast and excellence’ of the system in the place of its origin.’ 290 U.S. at 383, 54 S.Ct. at 216.
The adoption of comparative negligence in Hilen v. Hays “was premised upon the principle of fundamental fairness, that liability should be assessed in relation to fault and that the extent of liability should be determined by the extent of the fault.”10 As a result, “when there are joint tort-feasors the liability of either of them is limited by the extent of his fault.”11 This includes original defendants and third-party defendants.12 “The extent of the liability of each is a several liability and is limited to the degree of fault apportioned to each.”13 “Thus, a defendant’s liability is limited to its degree of fault, no more and no less.”14
The General Assembly codified the holding of Hilen v. Hays and its progeny in KRS 411.182:
(1) In all tort actions, including products liability actions, involving fault of more than one party to the action, including third-party defendants and persons who have been released under subsection (4) of this section, the court, unless otherwise agreed by all parties, shall instruct the jury to answer interrogatories or, if there is no jury, shall make findings indicating:
(a) The amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
(b) The percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under subsection (4) of this section.
(2) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal connection between the conduct and the damages claimed.
(3) The court shall determine the award of damages to each claimant in accordance with the findings, subject to any reduction under subsection (4) of this *785section, and shall determine and state in the judgment each -party’s equitable share of the obligation to each claimant in accordance with the respective percentages of fault.
(4) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable, shall discharge that person from all liability for contribution, but it shall not be considered to discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against the other persons shall be reduced by the amount of the released persons’ equitable share of the obligation, determined in accordance with the provisions of this section.15
The writers of one of the best-known treatises on tort law suggested that the adoption of such comparative fault schemes may lead to a paradigmatic shift in the manner in which courts approach indemnity issues:
Changes in the law of contribution and comparative fault may materially alter the context and the equities, thus causing courts to reconsider rules of indemnity. In the past, courts often viewed their choice as one between allocating the whole loss to one of two tortfeasors or dividing it equally between them. Adoption of comparative fault may be seen as creating another option — allocating loss according to percentages. In some contexts, this outcome may appear more equitable than either of the first two. Recognition of this option of percentage allocation has already caused some modification of the law of indemnity, and further modification may be expected.16
In fact, some jurisdictions which have faced this issue have found that comparative negligence and comparative fault statutes have abrogated the common law remedy of equitable implied indemnity between “passive” and “active” joint tortfea-sors17 while others have modified their common law to allow only for partial indemnity in proportion to comparative fault.18 In holding that their legislatures had modified the common law, these courts recognized equitable implied indemnity as “a blunt instrument for reallocating responsibility to damages [which] shifts the entire loss from one culpable wrongdoer to another”19 and took note of the malleability of the distinction between “active” and “passive” negligence:
With a little ingenuity in phrasing, negligence can be made to be either “active” or “passive” as suits the writer. For example, “driving an automobile with bad brakes” or “running through the stop sign” or “using a defective crane” might be said to be “active” negligence, while “omitting maintenance of brake fluid level” or “neglecting to apply the brakes” or “failing to inspect the crane in order to discover its defectiveness” might be “passive” negligence — these are the same acts or omissions, but the outcome depends not upon the facts, but upon how someone chooses to characterize them.20
While labels such as “active” or “passive” are themselves largely indeterminate, questions such as whether one party’s negligence is secondary because it arose from the negligence of the other party and *786would not have arisen but for it and whether the parties were or were not in pari delicto are proper factors to be weighed by the jury in determining the degree of fault apportioned to each party.21
The same principles of fundamental fairness that compelled the discarding of contributory negligence in favor of comparative negligence also compels the elimination of indemnity between joint tort-feasors who shoulder unequal fault. The Supreme Court of Minnesota addressed this issue and reasoned that an equitable concept such as implied indemnity exists only to correct unjust enrichment which cannot exist in a comparative fault jurisdiction which has abandoned joint and several liability:
In the related area of contributory negligence, our legislature has abandoned the all-or-nothing approach of the common law by adopting a comparative negligence statute.... Tortfeasors must now accept responsibility for damages commensurate with their own relative culpability. Because indemnity in [these] situations is an equitable doctrine, we are at liberty to ameliorate the rigid common-law rales in keeping with legislative philosophy without an express statutory mandate.
By limiting the reallocation of loss between joint tortfeasors to contribution based upon relative fault, the more culpable tortfeasor will continue to bear a greater share of the loss, but at the same time his joint tortfeasor will not continue to escape all liability as in the past....
The jury found that both [the defendants] were negligent and that the negligence of each was a direct cause of plaintiffs injury. Consequently, as between them, each will bear the cost of compensating plaintiff in proportion to its relative culpability.22
To hold otherwise effectively eviscerates the bedrock upon which KRS 411.182 was built and overrules Hilen v. Hays and its progeny. This Court held that “liability should be assessed in relation to fault and ... the extent of liability should be determined by the extent of the fault”23 because of its faith that juries can properly assess relative degrees of fault and, when appropriate, place the lion’s share of liability on the principal wrongdoer. Today’s majority withdraws that faith and holds that, even when a jury has determined that a defendant has engaged in tortious conduct and should be responsible for a proportional share of the plaintiffs damages, a tort-feasor may bring an equitable implied indemnity action against a more culpable joint tortfeasor who is “really” responsible for the plaintiffs damages. This holding is plainly inconsistent with KRS 411.182.
Other jurisdictions have chosen to allow plaintiffs to recover only when their own negligence is less than, or equal to, that of a defendant, but under Kentucky’s system of fault allocation, a plaintiff may recover even when his responsibility for his damages exceeds that of the defendant or defendants. In other words, a plaintiff who is ninety percent (90%) responsible for his own damages may still recover against a defendant found to be ten percent (10%) liable for those damages. In striking the balance in favor of pure comparative fault, the General Assembly has clearly signaled that the legislature in this state wishes to hold wrongdoers responsible in proportion to their respective percentages of fault.24 Today’s majority opinion not only ignores the General Assembly’s plain intent with respect to the comparative fault of joint tortfeasor defendants, but also potentially *787reinstates contributory negligence by, at least theoretically, allowing a “passively negligent” defendant to bring an action for equitable implied indemnity against an “actively negligent” plaintiff.25
Today’s majority polishes up a relic from days gone by which the courts created to address inequities which arose in the context of a harsh law of tort which held multiple jointly negligent tortfeasors entirely responsible for a single indivisible injury because it was thought that the injury could not be divided into parts to determine the responsibility of each negligent actor. Contribution, while provided for by statute as discussed in the majority opinion, was pro rata only, which was “fundamentally unfair”26 when the relative liabilities of joint tortfeasors were disproportionate. In this century, Kentucky tort law requires tortious parties to pay for their share of the plaintiffs damages, and only their share of the plaintiffs damages. Equitable implied indemnity is very much an anachronism, and KRS 411.182 properly rendered it extinct.
INDEMNITY IN CIVIL RIGHTS ACTIONS
Although I have expressed above that I feel that the General Assembly, by adopting KRS 411.182, intended to eliminate the common law action for equitable implied indemnity, I specifically disagree with the majority’s holding that an employer against whom an employee has brought a claim of sex-based, hostile workplace employment discrimination may have a Brown Hotel equitable implied indemnity claim against an individual sexual harasser. In my opinion, this holding misconstrues the cause of action created by KRS 344.040 and KRS 344.450 and ignores the policy decisions made by the General Assembly which assign direct liability to an employer for acts of employment discrimination.
KRS 344.040 makes it an unlawful practice for an employer:
(1) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual’s race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified person with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking.
(2) To limit, segregate, or classify employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect status as an employee, because of the individual’s race, color, religion, national origin, sex or age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking.27
KRS 344.450 provides a private right of action for employment discrimination:
Any person injured by any act in violation of the provisions of this chapter shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual damages sustained, together with the costs of the law suit. The court’s order or judgment shall include a reasonable fee for the plaintiffs attorney of record and any other remedies contained in this chapter.28
*788In Meyers v. Chapman Printing Co., Inc.,29 this Court followed the United States Supreme Court’s opinion in Meritor Sav. Bank v. Vinson30 and held that sexual harassment creating a hostile or abusive work environment could give rise to a claim under KRS 344.010.
KRS 344.030(2) defines “employer” as:
[A] person who has eight (8) or more employees within the state in each of twenty. (20) or more calendar weeks in the current or preceding calendar year and an agent of such person, except for purposes of determining discrimination based on disability, employer means a person engaged in an industry affecting commerce who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and any agent of that person .... 31
In Palmer v. International Association of Machinists and Aerospace Workers,32 this Court acknowledged and agreed with the weight of federal authority33 narrowly interpreting the term “employer” in Title VII of the 1964 Civil Rights Act to preclude liability on the part of individuals and entities who did not strictly meet the definition of employer.34 While some observers have criticized legislature’s decisions to hold employers and not individual perpetrators liable,35 both Title VII of the Civil Rights Act of 1964 and Kentucky’s statutory civil rights provisions hold employers, and only employers, directly liable for sexual discrimination in the workplace.36 While some jurisdictions have *789held that individual perpetrators of sexual harassment may still be liable for their actions under the common law of tort or contract,37 their liability does not stem from a violation of statutory laws against workplace discrimination.
I find it impossible to find room to pigeonhole Korp II’s claim against Dr. Salazar within the concept of Broum, Hotel equitable implied indemnity. The plaintiff in this action brought a claim against Korp II for sexual discrimination by allowing a hostile or abusive workplace to develop. Although the Oklahoma Court of Appeals case cited in the majority addresses the question of indemnity in the context of the employer’s vicarious liability, the doctrine of respondeat superior is not implicated by the facts of this case because Dr. Salazar was not an employee of Korp II, and Korp II could not be held vicariously liable for Dr. Salazar’s torts. Here, Korp II settled with the plaintiff a claim which alleged that Korp II had committed employment discrimination — a claim of action separate, distinct, and not derivative from any common law tort which Dr. Salazar may have committed. Implied equitable indemnity exists to prevent unjust enrichment. When “two persons are liable in tort to a third person for the same harm and one of them discharges the liability of both, he is entitled to indemnity from the other if the other would be unjustly enriched at his expense by the discharge of his liability.”38 Here, if the plaintiffs allegations are taken at face value, both Dr. Salazar and Korp II’s actions gave rise to claims for damages, but the claims and damages were distinct, and the plaintiff chose to pursue only the claim against Korp II for employment discrimination under a hostile workplace theory. The fact that Dr. Salazar might have committed a tort against the plaintiff which resulted in a claim for damages does not implicate Korp II’s own liability, and does not give rise to a claim for indemnity.
I would also note that strong public policy considerations hesitate against finding that an employer who has settled a claim of, or who has been found liable for, employment discrimination under a hostile workplace theory might have a claim for equitable implied indemnity against an individual perpetrator of sexual harassment. The General Assembly has made the policy decision to create workplace discrimination liability only for employers, and today’s majority guts that policy by removing any financial incentive for employers to take any proactive measures aimed at preventing sexual harassment in the workplace such as screening potential employees and supervisors, promptly responding to employee complaints, or adopting policies which clarify the employer’s procedures for eliminating sexual harassment. Under the majority’s logic, any employer itself found liable for hostile workplace discrimination need only bring an action against the “real” source of sexual harassment. This holding flies in the face of the statute, which places the onus for addressing sexual harassment issues on the employer. The majority opinion poorly serves the public interest by allowing employer wrongdoers to completely shift accountability to others. The General Assembly has made the decision to focus its statutory efforts to reduce employment discrimination on the actions of employers, and today’s majority reverses that decision by judicial fiat.
*790For the reasons outlined above, I would reverse the decision of the Court of Appeals in each case and reinstate the summary judgments entered by the respective trial courts.
JOHNSTONE, J., joins this dissent.
. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165, 166 (1949).
. Id.
. Id.
. Brown Hotel, supra note 1 at 166-67.
. Id. at 167.
. Id. at 166.
. Id. at 168.
. Brown Hotel Co., supra note 1 at 168.
. Ky., 673 S.W.2d 713 (1984).
. Dix & Associates v. Key, Ky., 799 S.W.2d 24 at 27 (1990).
. Floyd v. Carlisle Const. Co., Inc., Ky., 758 S.W.2d 430, 432 (1988).
. Stratton v. Parker, Ky., 793 S.W.2d 817 (1990); Dix & Associates v. Key, supra.
. Stratton v. Parker, Ky., 793 S.W.2d at 820.
. Continental Marine v. Bayliner Marine, Ky. App., 929 S.W.2d 206, 208 (1996).
. KRS 411.182 (emphasis added).
. Prosser and Keeton on Torts, 5th Edition, § 51 (West Publishing Co. 1984).
. See, e.g., Tolbert v. Gerber Industries, Inc., 255 N.W.2d 362 (Minn.1977); Cypress Creek Utility Service Company, Inc. v. Muller, 640 S.W.2d 860 (Tex. 1982).
. Woods, Comparative Fault, 2nd Edition, § 13:11 Indemnity (Lawyers Co-operative Publishing Co. 1987); See also Schneider National Inc. v. Holland Hitch Co., 843 P.2d 561 (Wyo.1992).
. Tolbert supra note 15 at 367.
. Schneider National, Inc. supra note 16 at 574 (citing Missouri Pac. R. Co. v. Whitehead & Kales Co., 566 S.W.2d 466, 471 (Mo.1978)).
.See, e.g., Schneider National, Inc. supra note 16 at 578-9 ("[T]he distinctions of "active” and "passive” negligence, while no longer determinative of the ability to seek indemnity, are factors to be weighed by the jury in assessing the percentage of fault of the parties.” Id.).
. Tolbert, supra note 15 at 367-8.
. Dix & Associates v. Key, supra note 8 at 27.
. KRS 411.182.
. The language of Brown Hotel, after all, does not distinguish between plaintiffs and defendants, but rather refers to the joint negligence of "parties.”
. See Dix & Associates Pipeline Contractors, Inc., supra note 8 at 27-28.
. KRS 344.040.
. KRS 344.450; see also Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 819 (1992).
. See supra note 26 at 820-821.
. 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
. KRS 344.030(2).
. Ky., 882 S.W.2d 117 (1994).
. See, e.g. Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir.1993); Miller v. Maxwell’s International, Inc., 991 F.2d 583 (9th Cir.1993), cert. denied 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994); Busby v. City of Orlando, 931 F.2d 764 (11th Cir.1991).
. Palmer, supra note 30 at 119; see also Effinger v. Philip Morris, Inc., 984 F.Supp. 1043 (W.D.Ky.1997).
. See, e.g. Hager, 30 Conn. Law R. 375 (1998):
During Jim Crow, many whites viewed physical abuse of blacks as wrong, but found their exclusion from lunch counters excusable. Anti-discrimination law stripped away the prerogative to exclude and soon induced many to condemn what they had once excused. Anti-discrimination law can carry this kind of positive force. It has its proper uses where an entire culture condones a certain kind of group mistreatment. Its vice, however, is to displace moral blame from individuals to cultures. It should not be overused. Anti-discrimination law was needed to dismantle Jim Crow in part because lunch counter exclusion did not invade personhood in a tortious sense and hence was non-actionable, absent anti-discrimination law. But a discrimination model can be superfluous and distracting in explaining thé wrongfulness of invading fundamental personal rights. It should be avoided where a paradigm of individualized culpability for recognized moral wrongs already holds sway. A paradigm of the wrongfulness of personal invasion does hold sway and we should assume that it applies to sexual harassment. Its name is tort.
One further problem with the discrimination paradigm for harassment bears highlighting. Lay people I speak with are generally astounded that Title VII harassment liability visits no legal sanction on the actual perpetrator. Though the circuits are split, the majority rule and the sounder reading of congressional intent is that liability lies exclusively against the employer. This outcome, so anomalous to common moral sense, flows naturally from conceptualizing harassment as employment discrimination. The strained and contrived nature of that conceptualization loosens the mooring between harassment law and common sense morals. Id.
.See, e.g., 30 U.S.F. L.Rev. 825, 826-827 (1996):
[Statutory schemes provide that the employer is directly liable for certain instances of sexual harassment. The doctrine of respon-deat superior is known also as vicarious liability, indicating that the employer is lia*789ble not because of its own conduct but because of its relationship to the employee committing the wrongful acts. Vicarious liability, then, is secondary liability. Thus, an employee who is the victim of sexual harassment need not prove her employer vicariously liable for the harasser-employee's acts, if the statutory requirements for direct liability are met. Id. (emphasis added).
. See, e.g. Id. at 834 and surrounding notes ("Contract theories under which a plaintiff may sue include breach of the implied covenant of good faith and fair dealing. Available tort causes of action include battery, assault ..and intentional infliction of emotional distress. Id.)
. 41 Am.Jur.2d 348 (Indemnity) § 2.