Author: Colin P. Pool*
It is often said that Abraham Lincoln, “faced with some thorny issue that could be settled by a twist of language,” would ask his questioner how many legs a dog would have if you called its tail a leg. “Five,” the questioner responds. “No,” Lincoln answers. “Calling a dog’s tail a leg doesn’t make it a leg.”[1] In a recent decision, Hauser v. Dayton Police Department,[2] the Ohio Supreme Court effectively “called a tail a leg,” and held that an employment discrimination statute that imposes liability on “any person acting directly or indirectly in the interest of an employer” did not, in fact, impose individual liability against public-sector supervisors. In doing so, the Court arbitrarily limited the tort remedies available to public-sector employment discrimination plaintiffs, and showed its willingness to engage in intellectual dishonesty to reach these results.
The Story of Hauser v. Dayton
Police Officer Anita Hauser filed suit against her employer, the Dayton Police Department, and her direct supervisor, Major E. Mitchell Davis, alleging age- and sex-based employment discrimination in violation of Ohio Revised Code (O.R.C.) § 4112.02(A).[3] That statute makes it “unlawful . . . [f]or any employer” to commit age- or sex-based discrimination. “Employer” is broadly defined in O.R.C. § 4112.01(A)(2) to include “any political subdivision of the state . . . and any person acting directly or indirectly in the interest of an employer.”[4]
This language is not ambiguous. It is clear that the statute imposes liability on “any person acting directly or indirectly in the interest of an employer,” that “person” can mean “one or more individuals,” and that “employer” can mean “any political subdivision of the state.” Read in concert with these definitions, the plain language of O.R.C. § 4112.02(A) imposes liability on “any one or more individuals acting directly or indirectly in the interest of any political subdivision of the state.” Section 4112.08 further mandates that “[t]his chapter [4112] shall be construed liberally for the accomplishment of its purposes.”
Hauser alleged claims against both her employer (a political subdivision of the state) and her direct supervisor (an individual acting directly in the political subdivision’s interest), arguing that the statute’s language imposes liability on both. Her argument was bolstered by the Ohio Supreme Court’s 1999 holding in Genaro v. Central Transport, Inc. that “a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of R.C. Chapter 4112.”[5]
But Hauser faced an additional hurdle: sovereign immunity.[6] Ohio Revised Code § 2744.03(A)(6)(c) provides that immunity can be lifted if “[c]ivil liability is expressly imposed upon the employee by a section of the Revised Code.”[7] As demonstrated above, the employment discrimination statute facially applies to any individual acting directly or indirectly in the interest of any political subdivision of the state. Thus, Hauser appeared to have no procedural obstacles to overcome in filing her claims.
Davis’s response—that Chapter 4112 only imposes vicarious liability on employers, and not individual supervisors—had previously been adopted by Ohio’s Eighth District Court of Appeals in Campolieti v. Cleveland.[8] Campolieti, however, is problematic for numerous reasons[9] and is the lone outlier among the state and federal courts that have interpreted the same statute.[10] It was not surprising, then, that Davis’s argument failed at the trial and appellate levels.[11]
The Second District Court of Appeal’s split from the Eighth District was resolved by the Ohio Supreme Court in a 3-1-3 decision which sided with Davis and found that “R.C. 4112.01(A)(2) and 4112.02(A) do not expressly impose civil liability on [political-subdivision] employees, but instead impose vicarious liability on the political subdivision itself.”[12] The opinion by Justice French was joined by Justices O’Connor and Lanzinger. Justice O’Donnell concurred in the judgment only but did not file an opinion. Dissenting opinions were filed by Justice Pfeiffer (joined by Justice O’Neill) and Justice Kennedy.
The Hauser Decision
The outcome hinged on interpreting the phrase “any person acting directly or indirectly in the interest of an employer.” To arrive at its conclusion, the Court first noted that “[i]n construing statutes, our task is not to pick out one sentence and disassociate it from the context. Rather, we construe statutes as a whole, and based on how one would have reasonably understood the text at the time it was enacted.”[13] It then pointed out that Chapter 4112’s original 1959 definition of employer read: “any person acting in the interest of an employer, directly or indirectly.”[14] According to the Court, by 1959 that phrase “had already acquired a particular meaning in the context of employment-practices legislation” because in the 1947 case of Packard Motor Car Co. v. N.L.R.B., the U.S. Supreme Court stated that the “‘obvious[]’ purpose of this phrase was ‘to render employers responsible in labor practices for acts of any persons performed in their interests.’ . . . [T]he purpose of the definition of ‘employer’ was to incorporate ‘the ancient maxim of the common law, respondeat superior.’”[15] The Ohio Court claimed it could not “ignore [Packard] when examining the General Assembly’s use 12 years later of the same language,” and “[g]iving this phrase the meaning it had ‘at the time’ of its enactment, we read it to mean what the United States Supreme Court said it meant: an employer faces respondeat superior liability for acts of any persons performed in [the employer’s] interests.”[16]
The Court then argued that “the General Assembly knows how to expressly impose liability on individuals,” pointing to the use of the terms “person,” “employee,” and “manager” in other subsections of § 4112.02 as evidence that the General Assembly intended a distinction between employers and individuals.[17] As further proof, it reasoned that “conclud[ing] that the employer-discrimination provision in R.C. 4112.02(A) expressly imposes liability on employees . . . would render the aiding-and-abetting provision in R.C. 4112.02(J) largely superfluous[, since t]hat provision already holds individual employees liable for their participation in discriminatory practices.”[18]
For further support, it noted that many federal courts when interpreting Title VII have concluded that use of the term “employer” only imposes vicarious liability.[19] The Court found “no material difference between” R.C. 4112.01(A)(2)’s and Title VII’s definitions because “[b]oth phrases reflect the purpose of exposing employers to vicarious liability under the doctrine of respondeat superior.”[20] Additionally, the Court found that Chapter 4112’s exclusion of employers with fewer than four employees pointed against “[r]eading the statute to simultaneously exempt a small-business owner from liability yet impose liability on any individual working for a larger company.”[21] It concluded by noting that “[w]hile it comes close, Genaro does not qualify as binding precedent on . . . this case,” because [it] addressed only private sector employers.[22]
The Deficiencies in the Court’s Reasoning
While the opinion’s rationale may initially seem convincing, it does not withstand scrutiny. As Justice Pfeifer stated in dissent: “[Section] 4112.01(A)(2) need not be very rigorously examined to realize that the lead opinion is patently wrong. . . . [It] in essence concludes that an employee of a political subdivision who discriminates illegally is not a “person acting directly or indirectly in the interest of an employer.”[23]
The Court sidestepped the statute’s plain meaning by asserting that the phrase “any person acting in the interest of an employer, directly or indirectly” had a settled legal meaning when the General Assembly chose it in 1959, due to the U.S. Supreme Court’s Packard decision. But this argument is specious at best. A closer examination of Packard reveals that the U.S. Court’s construction of the phrase was relevant only to the particular context of the question before it. In Packard, a group of industrial foremen wanted to organize under the National Labor Relations Act (NLRA), which conferred its privileges on “any employee.” The foremen’s employer argued the foremen had no right to organize as “employees” under the act because the foremen “act[ed] in the interest of an employer” and were thus “employers.” [24] However, The Court concluded that “[t]he context of the Act . . . leaves no room . . . to deny the organizational privilege to employees because they act in the interest of an employer.”[25] Congress chose that language only because it “was creating a new class of . . . unfair labor practices, and it [intended] the courts [to] apply the tort rule of respondeat superior to those derelictions.”[26] In other words, the Packard Court was not giving the phrase a specialized definition, but rather interpreting it in its own particular context: labor organization rights, a context very different from employment discrimination legislation.[27]
Even if the Packard Court had been assigning the phrase a particular meaning in 1947, there is no evidence that this was the same meaning the General Assembly had in mind in 1959. Indeed the only evidence we appear to have of the General Assembly’s intent in choosing the statute’s current (and slightly different) language points against this construction. In the fifteen years since Genaro—where the Ohio Court construed § 4112 to impose individual liability on supervisors—all legislative efforts to overturn that decision have been unsuccessful.[28] The General Assembly, then, appears to have at least tacitly agreed to Genaro’s construction of “employer.” So even if the 1959 General Assembly did intend the definition to only impose vicarious liability, it is at least as plausible that more recent General Assemblies intended the Genaro Court’s construction.[29]
The Hauser Court answers this deficiency by asserting that it must construe a statute “based on how one would have reasonably understood the text ‘at the time’ it was enacted.”[30] Yet it cites only one case—from 1957—for this proposition,[31] and a search for other Ohio Supreme Court cases that support using this originalist canon of construction leaves one lacking.[32] While the Ohio Court has stated in other cases that “[t]he object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law-making body which enacted it,”[33] it is also:
a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent as the language of a statute is its most natural expositor. Thus, the intention of the legislature in enacting a statute must be determined primarily from the language of the statute, if that can be done by a reasonable and proper construction of the language used.[34]
The amount of precedent supporting the above rule is staggering compared to the one 57 year-old case supporting an originalist construction.[35] The Hauser Court also fails to mention that Chapter 4112 supplies its own rule of construction in § 4112.08: “[t]his chapter shall be construed liberally for the accomplishment of its purposes.”[36]
Furthermore, the Court’s argument that federal Title VII caselaw supports its non-textual construction had previously been rejected by the Genaro Court: [37] Now, in adopting the typical Title VII interpretation of “employer” with its Hauser decision, the Ohio Court has now interpreted the exact same statute to mean two different things depending on whether one’s employer is private-sector or public-sector. This defies any attempt at a logical explanation, as the Court itself acknowledges: “our reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII. But because Genaro did not squarely address the immunity question at issue here, it is not binding authority, and we need not . . . decide whether we should overrule it.”[38]
The above dissection of the Hauser Court’s reasoning leads to only one conclusion: that the Court is playing games with the canons of statutory construction for political reasons. The Defense Bar is no friend of the Genaro decision,[39] while the Plaintiffs’ Bar naturally feels differently.[40] Was this decision meant to “split the baby?” The Court asserts that its “conclusion is limited to the provisions dealing with ‘employer’ discrimination” and that “individual political-subdivision employee[s] still face[] liability under other provisions [such as] the aiding-and-abetting provision in R.C. 4112.02(J).”[41]
However, this assertion is problematic for two reasons. First, the plain language of O.R.C. § 4112.02(J) does not impose liability on the direct perpetrators of discriminatory practices, but rather on those who aid another’s discrimination, those who cause or compel another’s discrimination, and those who attempt to discriminate.[42] Amicus Curiae the Ohio Association for Justice argued that § 4112.02(J) would apply to Davis’s alleged actions in this case, and therefore act as an alternate grounds for affirming the Second District’s decision below, but the Hauser Court did not hold as such. One could easily imagine a situation where an individual supervisor discriminated against a subordinate but was not “aiding or abetting” its employer in doing so—a “lone wolf” actor, so to speak. Who does the alleged victim in this example sue post-Hauser? The Court’s opinion implicitly holds that the solution to this problem is that the “lone wolf’s” actions become the vicarious responsibility of the employer. But the importance of joint-and-several liability is that both parties can be made to answer for damages, not to mention that one defendant can seek indemnity from the other.
Second, even if the Ohio Court intended to signal to future plaintiffs that § 4112.02(J) should be used to allege employment discrimination claims against individuals, such action will likely have little precedential value. Because the Court’s opinion only represents three justices, no majority of the justices held that § 4112.02(J) will per se act to impose individual liability against supervisors in employment discrimination scenarios. This argument will therefore likely fail if pursued.
Conclusion
The Hauser opinion is indeed “patently wrong.” As a result, Ohio public employees now have less protection than their private-sector counterparts for arbitrary reasons. There is no justifiable basis for treating political subdivision employees differently from their private-sector counterparts with respect to tort remedies for employment discrimination. Individual liability for managers and supervisors deters discriminatory behavior and holds accountable those who perpetrate it. The Ohio Supreme Court does not carry out the purposes of Chapter 4112 nor act in the interest of justice by closing the courthouse doors to public-sector plaintiffs.
The Ohio Court’s reliance on the U.S. Court’s Packard decision is a clever smokescreen, but nothing more. If the Ohio Court truly needed guidance from the 1940’s-era U.S. Court, it should have instead looked to the case of Gemsco, Inc. v. Walling: “The plain words and meaning of a statute cannot be overcome by a legiselative [sic] history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.”[43]
The people of Ohio deserve a more principled judiciary.
* Mr. Pool is an attorney licensed in Ohio. He would like to thank Prof. Kimberly Breedon for her assistance with drafting this article.
[1] Ed Darrell, Lincoln Quote Sourced: Calf’s Tail, Not Dog’s Tail, Millard Fillmore’s Bathtub, http://timpanogos.wordpress.com/2007/05/23/lincoln-quote-sourced-calfs-tail-not-dogs-tail/ (last visited Oct. 12, 2014).
[2] Hauser v. Dayton Police Dept., Slip Opinion No. 2014-Ohio-3636 (Ohio, Aug. 28, 2014), available at http://www.sconet.state.oh.us/ROD/docs/pdf/0/2014/2014-Ohio-3636.pdf.
[3] Hauser, ¶ 2.
[4] Ohio Rev. Code § 4112.01(A)(2) (West 2014). Furthermore, “person” is defined in O.R.C. § 4112.01(A)(1) to include “one or more individuals . . . .” Ohio Rev. Code § 4112.01(A)(1) (West 2014).
[5] Genaro v. Cent. Tranport Inc., 703 N.E.2d 782, 787–88 (Ohio 1999).
[6] Because her employer was a political subdivision, Hauser’s claims were subject to the Political Subdivision Tort Liability Act, which “generally provides that political subdivisions and their employees are immune from liability.” Schoenfield v. Navarre, 843 N.E.2d 234, 238 (Ohio Ct. App. 6th Dist. 2005).
[7] Ohio Rev. Code § 2744.03(A)(6)(c).
[8] Campolieti v. Cleveland, 921 N.E.2d 286 (Ohio Ct. App. 8th Dist. 2009).
[9] First of all, Campolieti does not even mention the Genaro decision even once, despite having been decided ten years later. Furthermore, Campolieti found that an individual was immune from suit under R.C. § 4112.14 because that section “speaks in terms of employers.” Id. at 294. But the decision does not, even once, mention the statutory definition of “employer” as found in § 4112.01(A)(2), nor does it discuss how the term is broadly defined in that statute. Instead the “court seemed to merely use the everyday definition of employer as the entity itself without realizing that there existed a special statutory definition of employer applicable to Chapter 4112.” Hauser v. Dayton Police Dept., 986 N.E.2d 523, 528 (Ohio Ct. App. 2d Dist. 2013). Campolieti also fails to discuss the directive of R.C. § 4112.08 that Chapter 4112 should be construed liberally.
[10] See Hauser v. Dayton Police Dept., 986 N.E.2d 523; Satterfield v. Karnes, 736 F. Supp. 2d 1138, 1154–55 (S.D. Ohio 2010) (“Although it is conceivable that the Ohio Supreme Court could hold that Genaro-based liability in § 4112 is not what the Ohio legislature had in mind when it required that liability be ‘expressly imposed upon the employee by a section of the Revised Code’ in order for immunity to be withdrawn, there does not appear to be any clear ‘data’ to make this Court believe that the Ohio Supreme Court would so hold.”) (emphasis added); Albert v. Trumbull Cnty. Board, 11th Dist. No. 98-T-0095, 1999 WL 957066 (“a political subdivision and its employees may be liable for discriminatory practices pursuant to . . . Chapter 4112.”); State ex rel. Conroy v. Williams, 923 N.E.2d 191, 197 (Ohio Ct. App. 7th Dist. 2009) (supervisor at a political subdivision was not immune from liability in a discrimination action); Hall v. Memorial Hosp. of Union Cnty., No. 14–06–03, 2006-Ohio-4552, 2006 WL 2535761, ¶ 15 (3d Dist.) (three defendants who occupied managerial or supervisory positions in a hospital, which was a political subdivision, were not entitled to statutory immunity as liability was expressly imposed for disability discrimination under Chapter 4112).
[11] Hauser, 2014-Ohio-3636, ¶¶ 4–5.
[12] Id. at ¶ 1.
[13] Id. at ¶ 9 (internal citations and quotations omitted).
[14] Id. at ¶ 10.
[15] Id. (citing Packard Motor Car Co. v. Natl. Labor Relations Bd., 330 U.S. 485, 488 (1947).
[16] Id. at ¶ 11.
[17] Id. at ¶ 12.
[18] Id.
[19] Id. at ¶ 13. Title VII defines “‘employer’” to include certain persons with 15 or more employees and ‘any agent of such a person.’” Id.
[20] Id. at ¶ 14.
[21] Id.
[22] Id. at ¶¶ 16–17.
[23] Id. at ¶ 21 (Pfeiffer, J., dissenting). Justice Kennedy’s dissent essentially agreed, but further noted that “[w]hile I disagree with the holding in Genaro, it [is] the law of Ohio . . . and my duty is to apply it.” Id. at ¶ 27 (Kennedy, J., dissenting).
[24] Packard Motor Car Co. v. Natl. Labor Relations Bd., 330 U.S. 485, 486–88 (1947).
[25] Id.
[26] Id. at 489.
[27] Later in Packard, the Court also noted: “We are invited to make a lengthy examination of views expressed in Congress while this and later legislation was pending to show that exclusion of foremen was intended. There is, however, no ambiguity in this Act to be clarified by resort to legislative history.” Id. at 492.. It is ironic, then, that the Hauser Court asserted that its task was “not to pick out one sentence and disassociate it from the context,” since in finding against Hauser, the Court picked out one phrase; disassociated it from its context; and resorted to a spurious legislative history to assert that the phrase had a specialized meaning because of its use by a different legislative body twenty-four years earlier in an entirely different legislative context.
[28] For example, both House Bill 300 (125th General Assembly) and Senate Bill 383 (129th General Assembly) only received sponsor hearings and did not make it out of committee.
[29] As Justice Kennedy noted in dissent, “[t]he General Assembly has amended R.C. 4112.01 five times since [1999], but it has never addressed [Genaro] through legislation.” Id. at ¶ 27.
[30] Id. at ¶ 9 (emphasis added).
[31] Volz v. Volz, 146 N.E.2d 734 (Ohio 1957).
[32] Volz is cited just once in Ohio Jurisprudence 3d Statutes, and for a different proposition. See 85 Ohio Jur. 3d Statutes § 215.
[33] Tomasik v. Tomasik, 857 N.E.2d 127, 129 (Ohio 2006).
[34] 85 Ohio Jur. 3d Statutes § 127.
[35] See id.
[36] Ohio Rev. Code § 4112.08 (West 2014).
[37] Genaro v. Cent. Tranport Inc., 703 N.E.2d 782, 787 (Ohio 1999).
[38] Hauser, ¶ 17.
[39] See, e.g., Jon Hyman, Ohio Supreme Court Punts on Individual Discrimination Liability . . . For Now, Ohio Employer’s Law Blog (Sept. 2, 2014), http://www.ohioemployerlawblog.com/2014/09/ohio-supreme-court-punts-on-individual.html.
[40] The Ohio Association for Justice and the Ohio Employment Lawyers Association, among others, filed amicus curiae briefs in support of Hauser.
[41] Hauser, ¶ 15.
[42] Ohio Rev. Code § 4112.02(J) (West 2014).
[43] Gemsco, Inc. v. Walling, 324 U.S. 244, 260 (1945).
