In This Issue

• Eighth Annual Labor and Employee Relations Seminar: February 27, 2001
• Newsletter Updates — by E-Mail
• New Wrinkles in Employer "Intentional Tort" Liability
  1. Employee Medical Restrictions
  2. Employee Security
• Are Employers Liable for Comments by Employees on Internet Sites?
• Updates and Warnings
  1. OSHA Is Alive and Well
  2. Employer Liability for Third-Party Sexual Harassment
  3. On the Other Hand, Sexual Favoritism Is Not Unlawful
  4. Employee Drunk Driving
• Employees Will Not Be Held Liable for Home Office Hazards
• Employee Can Pursue Sexual Harassment Claim Based on Three Separate Incidents

Eighth Annual Labor and Employee Relations Seminar: February 27, 2001

Kegler, Brown, Hill & Ritter will sponsor its eighth annual Labor and Employment Law Seminar on February 27, 2001, in Columbus, Ohio. The seminar, entitled "Selected Issues in Managing Labor and Employee Relations in the Workplace: The Employer's Perspective," will feature presentations on a wide variety of employment related topics and developments.

The speakers will also be available for a question and answer session both during and following the seminar. In addition, detailed written materials on each topic will be provided to each person attending the seminar. Click here for the seminar reservation form or contact Molly Morgan at Kegler, Brown, Hill & Ritter at (614) 462-5400.

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Newsletter Updates — By E-Mail

We are pleased to announce that Kegler, Brown, Hill & Ritter will be providing electronic mail Labor & Employment Law updates to our clients, friends, and colleagues. Beginning in mid-September 2000, Kegler Brown will be forwarding, via e-mail, a monthly update discussing a current issue of Labor & Employment Law. If you are interested in receiving this monthly e-mail, please use our Publications Subscription Form to sign up.

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New Wrinkles In Employer "Intentional Tort" Liability

By Larry Feheley

The "intentional tort" claim, whereby an employee sues his or her employer for damages over and above workers' compensation benefits after an accident or injury, was created by the Ohio Supreme Court. Various attempts by the Ohio legislature to narrowly define the parameters of the claim, and/or to limit the amount of damages that can be recovered, have steadfastly been ruled unconstitutional by the Supreme Court. In the meantime, intentional tort claims continue to be filed against employers, with varying results. Two of the more recent and novel rulings in this area are described below.

1. Employee Medical Restrictions

Employees frequently report for work brandishing a statement from their doctor that restricts them to some form of limited duty. According to the Court of Appeals for Trumball County, Ohio, requiring an employee under medical restrictions to do work in excess of the restrictions can constitute an intentional tort. Sinea v. Denman Tire Corporation, 1999 WL 960566 (Trum. Co. 1999).

In this case, the employee worked in a manual labor job that required frequent heavy lifting. His doctor placed him on medical restriction, limiting lifting to less than twenty-five pounds and prohibiting repetitive twisting and bending. The restrictions were approved by the company's corporate physician and a copy of the restrictions was placed in the employee's personnel file. The restrictions were described as "permanent." The employee transferred to a position more suitable to his restrictions.

Five years later, the employee was assigned to a job that required him to sweep, shovel refuse, and pick up and empty trash. The employee testified that he told his new supervisors about his medical restrictions, but they paid no heed and continued to direct him to perform the tasks. Thereafter, the employee claimed that he reinjured his back. After he sued the company for an intentional tort the jury awarded him $125,000.00.

On appeal, the appellate court upheld the award and stated:

"The jury could reasonably infer that [the supervisor] knowingly assigned [the employee] to a position which would require [him] to perform tasks in violation of his restrictions and which would create a substantial certainty of harm to [him].

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2. Employee Security

A tragic event occurs. A female employee is abducted from an unguarded parking lot and is sexually assaulted. Can the employer be held liable? Yes, according to a recent verdict from a Franklin County jury, who awarded the woman $400,000 against her employer. McCann v. Grant Riverside Methodist Hospital (Fkln. Co. C.P. 1999).

In a novel application of the "intentional tort" theory, the woman argued that the employer was liable because the employer knew, or was substantially certain, that serious harm would occur. The facts were that the employee had been given parking privileges in the employer's lot, which was equipped with an electronic gate.

However, (a) there had been numerous criminal incidents in the area of the lot, (b) there were numerous criminal acts on the employer's own property (e.g., carjackings, employees robbed at gunpoint, etc.), and (c) the employer provided inadequate safety measures. Specifically, the parking lot was not fenced, there was no attendant on the lot, no security personnel patrolled the lot, and the entrance gate was broken and unrepaired.

One of the requirements to establish intentional tort liability is that the employee must have been directed to perform the task, despite the risk of injury. In this case, this requirement was deemed to be met because the employee was assigned to park in this particular lot.

Intentional tort claims customarily do not involve acts by a third party. Most frequently, they concern situations where an employer has removed or disregarded safety precautions, such as guards or machines.

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Are Employers Liable For Comments By Employees On Internet Sites?

By Tom Metzger

A former Continental Airlines pilot has filed suit against the company claiming that the airline is liable for allegedly disparaging comments that were made by fellow employees through an on-line bulletin board.

In establishing the on-line bulletin board site, Continental Airlines entered into an agreement with CompuServe to create an in-house service for crew members to access flight assignments and to create a link to a chat room for crew members. The airline maintained that it did not control the content of the forums in any respect. In addition, the airline asserted that airline employees could only access the on-line site through their personal computers, and could not access the on-line service through computers maintained by the airline.

One topic that was discussed on the on-line forum was a sexual harassment lawsuit filed by the former Continental Airlines pilot. The pilot had claimed that she had been subjected to pornography and abusive comments at work, and the subject of her lawsuit against the company was raised on several occasions on the on-line site (The pilot ultimately was awarded more than $600,000 for being subjected to an allegedly hostile work environment).

The former pilot has now filed a separate suit alleging that the company is liable for the allegedly defamatory comments made about her by Continental Airline employees on the on-line bulletin board. The former employee is claiming that Continental Airlines should have taken affirmative action to stop the comments because it set up the Internet forum in order to benefit its employees and that comments about her and the sexual harassment lawsuit against the airline were common knowledge among airline employees. In effect, the former employee has asserted that the employer was on notice of the alleged harassment that was taking place through the Internet and that it should have responded to the comments.

The courts, so far, have not been sympathetic to the former employee's claims. While the case is presently before the New Jersey Supreme Court, the lower courts have uniformly dismissed the claim of defamation. In doing so, the courts have emphasized that the Internet forum was outside of the workplace, that there was no employer control over the forum, and that employees were not required to use the forum. Based upon these particular facts, the courts have concluded that the airline did not have a duty to police the content of the forum.

The case emphasizes that while employers may be able to escape liability for personal, private discussions conducted by employees on their own time and on their own computers, the greater control an employer maintains over an Internet discussion forum, the more likely it is that a disgruntled employee or former employee may attempt to assert that the employer is responsible for any defamatory or harassing statements made in the forum. Employers who do sponsor or otherwise maintain some control over on-line discussion forums, including bulletin boards or chat lines, should be cautious not to turn the other way when it comes to the content of discussions.

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Updates And Warnings

By Larry Feheley

1. OSHA is Alive and Well

There has been a spate of publicity about OSHA's proposed ergonomics standard, which has been a decade in the making.  These rules will require employers to establish programs to reduce musculoskeletal injuries (such as carpel tunnel syndrome) where employees perform repetitive functions. ("Ergonomics" is the science of fitting the job to the worker, not vice-versa.) Under the proposed rule, all employers that employ individuals in "manual handling" jobs will be required to establish ergonomics programs; other employers will have to implement programs after an employee reports a musculoskeletal injury. 

OSHA has been busy on other fronts, too. Last March a final standard that covers fork lifts, tow motors, and other industrial trucks became effective. This rule was also under development at OSHA for nearly ten years. The rule requires employers to develop training programs (or hire consultants to provide training) in the proper operation and hazards of operating the equipment. The employer must certify and document that each of its operators have been trained in accordance with the new standard. Refresher training must be provided every three years, as well as whenever prescribed incidents (such as accidents or near-misses) occur. The rule applies to virtually all employers that utilize powered industrial vehicles that carry, push, lift, stack, or tier materials.

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2. Employer Liability for Third-Party Sexual Harassment

An employer's responsibility to prohibit and eliminate sexual harassment in the workplace are chronicled virtually every day. One new wrinkle on the harassment theme involves harassment of employees by third parties, such as the company's customers.

A good example arose in the case of Ariania v. Daubenspeck Chiropractic, 129 Ohio App. 3d 516 (Clark Co. 1998). In this case, two employees sued their employer, a chiropractic clinic, because they were subjected to sexual harassment by the clinic's patients. The clinic argued that it should not be held liable for harassing conduct of non-employees. However, there is an Administrative Code provision in Ohio which states:

"An employer may also be responsible for the acts of non-employees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate action." 

The EEOC has also issued a similar federal guideline [found at 29 C.F.R. §1604.11(e)], and the federal courts have consistently held employers liable for hostile work environment harassment caused by non-employees. 

On this basis, the appellate court in the Ariania case held that the Ohio courts will recognize a claim for hostile work environment sexual harassment based upon the acts of non-employees.

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3. On the Other Hand, Sexual Favoritism is Not Unlawful

While employer liability for sexual harassment seems to be expanding both exponentially and unabated, some respite has been offered by the Franklin County Court of Appeals, at least in the area of sexual favoritism.

In the case before the court, an employee claimed that she was the victim of sex discrimination when the company president promoted another woman, with whom he was romantically involved, to a position that the plaintiff desired. Asp v. Ohio Medical Transportation, 1999 WL 430713 (Fkln. Co. 1999).

The plaintiff's argument was that the promotion decision was made on the basis of sex, and since she was not having a relationship with the president she was discriminated against on the basis of sex. The appeals court rejected the claim, stating that the creation of discrimination liability based upon romantic relationships with the boss, which would be a wide expansion of existing sex discrimination law, should be the function of the Ohio legislature and not the courts. However, the court did acknowledge that other courts, including the federal courts, have allowed such claims to proceed where the relationship creates a hostile, abusive, or sexually-charged work environment:

"Facts in such cases typically involve a supervisor who brings sexual conflict into the workplace with one or more subordinates, and establishes a pervasive, pernicious pattern of sexual coercion which leaves the non-consenting subordinates in a precarious situation for continued employment or advancement."

This is not to say that it is a recommended practice that employment decisions be made on the basis of sexual or romantic relationships. However, at least for now, such decisions are not unlawful under Ohio law.

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4. Employee Drunk Driving

It seems as though every holiday season spawns a new round of judicial debate about an employer's liability for employee drunk driving after office parties. Franklin County is no exception.

The case of Gilkey v. Gibson, 1998 WL 514109 (Fkln. Co. 1998), resulted in a 2-1 decision that an employer was not liable when an intoxicated employee killed another motorist in an automobile accident after the company party. The technical basis of the court's ruling was that the company was not liable because the employee was driving his own car and the accident did not occur on company property. However, according to the testimony of the company president, this employer went to extraordinary lengths to avoid such a mishap. Otherwise, the result of the case may have been different.

The company holiday party started after lunch and was held in the company's warehouse. Employees were allowed to drink as much as they wanted. However, vouchers for taxis were available to anyone who needed a ride home. When the plaintiff employee appeared to have had too much to drink, he was asked several times to take a taxi or ride home with co-employees, but he steadfastly refused. The president then told two employees to confiscate the employee's car keys. He also told them to disconnect the coil wire so he couldn't start his car. Unfortunately, the other employees could not get the keys and they couldn't disable the car because it was locked. As a result, the president had the employee's car blocked in the parking lot with a company truck. Nonetheless, the employee started his car, hit the truck and moved it enough to get out, and started to leave. Yet another co-worker tried to take his keys out of the ignition, but he was unable to get them. The employee drove off and was involved in an accident in which another motorist was killed.

The appeals court ruled that an employer's responsibility to control an employee is limited to when they are on the company's premises or when they are using company property. Judge John Kennedy, late of the Columbus City Council, vigorously dissented from the ruling. His view was that it was the employer's responsibility to control the employee while he was on company property, such that he did not injure others when he left it.

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Employees Will Not Be Held Liable For Home Office Hazards

The Occupational Safety and Health Administration has decided that employers will not be held liable for hazards in their employees' home offices. Pursuant to a compliance directive, OSHA has withdrawn a letter that suggested employers could be held liable for the health and safety of at-home workers. Under its revised directive, OSHA will not inspect employees home offices and it will not expect employers to do so either.

OSHA has further indicated that if it receives a complaint from an at-home worker, it will inform the employee of the current policy and it will not conduct any follow-up inspections. However, OSHA has indicated that it may investigate complaints about potential hazards in home-based worksites where non-office work is also being performed, such as manufacturing operations. Specifically, OSHA has stated that it will perform inspections in such work places only if it "receives a complaint or referral that indicates that violation of a safety and health standard exists that threatens physical harm, or that imminent danger exists, including reports of a work-related fatality." In other words, employers should take notice that they could be held responsible for hazards in home-based worksites where non-office work is being performed and where the hazards are caused by "materials, equipment or work processes."

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Employee Can Pursue Sexual Harrassment Claim Based On Three Separate Incidents

by Tom Metzger

An employee who was sexually harassed on three separate occasions by a co-worker can pursue a claim for damages pursuant to federal law, says a United States Court of Appeals in reversing a decision by the trial court for the employer.

The plaintiff in the case had reported that within a one-week period her co-worker had made a vulgar remark to her, forcibly kissed her, and tried to unfasten her bra when she tried to escape a second kiss. No other incidents of harassment took place.

Relying upon the requirement that conduct must be severe and pervasive in order to constitute harassment that is actionable under law, the employer argued that the employee could not pursue her claim. The trial court had agreed with the employer, and the case initially was dismissed prior to trial. However, the Court of Appeals reversed the trial court, and in so doing remanded the case for a trial on the merits.

The Court of Appeals emphasized that "there is no 'magic number' of incidents required to establish a hostile environment." The Court went on to explain that "even one act of harassment will suffice if it is egregious." The facts of this particular case were in contrast with other decisions that have held that an employee's claim of harassment should be dismissed based on allegations of an isolated kiss or embrace. Here, the co-worker held the plaintiff's face in his hands and then forced a kiss on the plaintiff. Later, when the co-worker again tried to kiss the plaintiff and she resisted and used her body to shield herself, the co-worker began to unfasten her bra, and stopped only when another employee entered the office. Based upon all of these facts taken together, the Court concluded that a jury should have the opportunity to consider whether the plaintiff's work environment was hostile in violation of the law.

The decision provides further reason for employers to carefully enforce policies against harassment in the workplace, and to fully respond to and investigate all potential incidents of harassment.

Hostetler v. Quality Dining, Inc., No. 98-2386 (June 29, 2000).

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