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Bradd N. Siegel, Fred G. Pressley, Jr., Editors
Porter Wright Morris & Arthur LLP
Vol. 18, No. 8
August 2007
EMOTIONAL DISTRESS
No more harassment: Employer must provide a safe working environment
by Jennifer N. Randolph
Under Ohio law, you have a duty to provide a safe working environment for your employees. An Ohio appellate court recently considered an employee's intentional infliction of emotional distress claims against his employer and coworkers for harassment
based on his sexual orientation.
Facts
Barry P. Tenney, who is a homosexual, has been an employee of General Electric Company (GE) since 1973. Throughout his employment, he faced harassment and ridicule based on his sexual orientation.
Tenney's coworkers frequently humiliated him without any interference from management. He was struck by glass in an incident involving two coworkers, causing him permanent injury. He was subjected to other employees making pig noises at him for
months. Further, the company nurse made offensive comments to him regarding homosexuality and sexually groped him in her office. In the men's restroom, graphic and offensive graffiti directed at him or homosexuals in general was common and often was
left on the walls for months before being removed.
Tenney repeatedly reported incidents to his supervisors and filed numerous grievances with the union, but no employee was ever disciplined in any manner for harassing him. He claimed the incidents "depressed him, made him suicidal, and . . . caused
extreme psychological distress."
In 2000, Tenney filed suit against his employer and several of his coworkers. Over the course of several proceedings, two of his claims were dismissed. The trial court then granted summary judgment (dismissal before trial) for GE and the individual
coworkers on his intentional infliction of emotional distress claim, and he appealed.
Court's decision
The district court of appeals held that the trial court properly granted summary judgment for the individual coworkers but erred in granting summary judgment to GE on the intentional infliction of emotional distress claim.
To prove a claim for the intentional infliction of emotional distress, an employee must establish that:
- the employer intended to cause him serious emotional distress;
- its actions were extreme and outrageous; and
- its conduct caused him serious emotional distress.
Ohio courts have held that in employment cases, mere harassment
or offensive and insulting conduct is insufficient to establish an intentional infliction of emotional distress claim. The court held that the coworkers' actions didn't rise above mere harassment and therefore affirmed the trial court's grant of
summary judgment for the individual coworkers.
For the employer, however, the court undertook a different analysis. Under state law, the court noted, an employer has a duty to provide its employees with a safe work environment. Thus, an employer may be independently liable for failing to
discipline an employee who poses a threat to another employee. GE acknowledged that it had notice of the harassment but argued it wasn't liable for its employees' actions that were outside the scope of their employment. Under Ohio law, however, the
court noted that the company could be liable for failing to pursue corrective action against the employees who harassed Tenney if its failure rose to the level of intentional conduct and was extreme and outrageous.
The court found that the numerous incidents over an extended period of time reflected a pattern of inaction on behalf of GE. Although the company may not have condoned its employees' actions, it allowed them to continue over many years. Thus, the
court found there was a genuine issue of fact about whether GE's conduct was extreme and outrageous, and it held that the trial court erred in granting the company summary judgment.
Comment
You have a duty to provide a safe workplace for your employees. Therefore, you must be aware of the activities they undertake while on company property. You can't simply ignore acts of harassment; rather, you must be proactive in preventing them and
disciplining the instigating employees. Consider consulting legal counsel if harassment of any type becomes a problem in the workplace.
Jennifer N. Randolph is an attorney with Porter Wright Morris & Arthur LLP. She can be reached at (513) 369-4206 or jrandolph@porterwright.com.
Copyright 2007 M. Lee Smith Publishers LLC
OHIO EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Ohio employment law. Questions about individual problems should be addressed to the employment law
attorney of your choice.
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