Best Ohio Employment Lawyer Answer: Can I sue my supervisor directly for sexually harassing me at work? Can I sue both my manager and my company for gender and race discrimination? How can I hold the owner of the company that I work at directly response for calling me the n-word and wrongfully firing me?
As regular readers of our employment lawyers’ blog (we appreciate you the best), the primary antiemployment discrimination law in Ohio is R.C. § 4112.02(A) which makes it illegal for an “employer” to harass, or discriminate against an employee based on their race/color, religion, gender/sex, national origin, age, or disability. The federal version is found at Title VII of the Civil Rights Act of 1964.
Just who is an employer? It seems like such a simple question.
You might be thinking “an employer is the company I work for,” or “my employer is the guy who signs my paychecks.” Yet, in the legal arena the answer isn’t so cut and dry. As I am sure you realize the question of who qualifies as an employer is an essential one to the practice of employment law. This is because only parties that meet the legal definition of “employer” can be sued under anti-employment discrimination laws. Therefore, if a person has been harassed or discriminated against by their boss, supervisor, or manager, the only way to hold this boss or supervisor liable is if the boss or supervisor is considered an employer under the law. Sadly, the question of who qualifies as an employer is not a question the courts always agree on. Thankfully, the experienced employment attorneys at The Spitz law firm are here to try and help you sort this out.
The state law definition of “Employer” under R.C. § 4112.01(A)(2) includes “any person acting directly or indirectly in the interest of an employer.” Providing further clarity, R.C. § 4112.01(A)(1) states, in part, that “‘Person’ includes one or more individuals.” Compare this to the federal definition of employer under Title VII which defines employer under 42 U.S.C.A. 2000e(b) as “a person engaged in an industry affecting commerce who has fifteen or more employees…” As you can see the Ohio law applies to any individual who acts in the interest of an employer, while federal law requires an “employer” to have a certain number of employees, and to affect commerce. The federal law is much more limited as to who can qualify as an employer, while Ohio law includes almost every manager and supervisor. Ohio courts have applied the broad definition of employer reasoning that “by holding supervisors and managers individually liable for their discriminatory actions, the antidiscrimination purposes of R.C. Chapter 4112 are facilitated, thereby furthering the public policy goals of this state regarding workplace discrimination.” See. Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293 at 297.
Indeed, our employment law lawyers at The Spitz Law Firm recently clarified the meaning of “employer” before the United States District Court in the Northern District of Ohio Eastern Division. In doing so, our dedicated employment discrimination attorneys have once again won a great victory for Ohio employees. Before this federal court, our attorneys defeated an employer’s motion to dismiss (aka throw out) a case. The main issue contested in this motion? You guessed it, who qualifies as an employer?
In this recent victory our employment discrimination attorneys represented Ashley Musarra regular part time Registered Nurse. Musarra had been the victim of sexual harassment and pregnancy discrimination at the hands of her supervisor. As we have blogged before both sexual harassment and pregnancy discrimination are illegal. (See What Can I Do If I Was Fired Today For Being Pregnant? I Need The Best Pregnancy Discrimination Attorney And Top FMLA Lawyer In Ohio! And How Do I Prove That I Was Sexually Harassed At Work By My Boss? Help, I Need The Best Sex Harassment Lawyer In Ohio!)
Our complaint sets forth the key facts, starting in May 2017, Musarra when notified Defendants that she was pregnant, including specifically Harry Pearce and Lisa Abbott, both of who had supervisory authority over her. During her employment, Musarra requested accommodations from Abbott for her pregnancy and pregnancy related medical conditions. On several occasions, Musarra requested some part-time shifts after disclosing her pregnancy to assist her with the side-effects of her pregnancy (i.e. morning sickness, staying off her feet for parts of the day), but Defendants denied Musarra’s requests.
Our complaint further provides that on June 11, 2017, Pearce brought Musarra into an examination room where he was testing a male patient for sexually transmitted diseases (“June 2017 STD Exam”). During the June 2017 STD Exam, Pearce commented, in front of the patient, that Musarra’s breasts were big and that Musarra had “a lucky husband”; and Musarra complained to Abbott. The employment discrimination complaint further provides that between June 11, 2017, and July 20, 2017, Pearce frequently made comments about Musarra’s breasts including comments about how he believed Musarra’s breasts were going to get “bigger” while her pregnancy continued; and Musarra complained to Abbott about the Pearce Continued Breast Comments. Between June 11, 2017, and July 20, 2017, as alleged in the wrongful termination complaint, Pearce intentionally touched and/or brushed against Musarra when he passed her in the hall or worked with her in close proximity; and Musarra complained to Abbott. Between June 11, 2017, and July 20, 2017, Pearce made multiple requests for Musarra to stay after hours and to work alone with him, per the complaint; and Musarra also rejected Pearce’s sexual advances; and again, complained to Abbott.
As we have argued in court, after Musarra reported sexual harassment to Abbott, Musarra was given unfavorable performance evaluations. Around July 20, 2017, Abbott met with Musarra and complained that she was not meeting performance expectations and that Defendants “expected more” from her. On July 24, 2017, Musarra was terminated; and Abbott participated in the termination decision.
Musarra went to Abbott seeking help and protection from the Pearce’s harassment. Unfortunately, instead of stopping the harassment, we believe that Abbot decided instead of investigating Musarra’s complaint of sexual harassment, to give Musarra unfavorable performance evaluations and eventually terminate her. This is another form of discrimination called retaliation. (See Top Sexual Harassment Attorney Reply: What Constitutes Retaliation For Reporting Sexual Harassment?)
Like many victims of sexual harassment, Musarra wanted to hold not only the hospital accountable, but both Pearce and Abbott accountable. While it is important to hold the larger organization, in this case the hospital, accountable for allowing this harassment to happen it is just as important to get justice for the victims by holding the harassers accountable, especially when the harasser is a manager or supervisor.
Our employment discrimination lawyers brought Musarra’s case before the United States District Court in the Northern District of Ohio Eastern Division, bringing claims against the hospital, Pearce and Abbott. Both supervisors attempted to escape responsibility for their part in the harassment and discrimination by asking Judge Christopher A. Boyko to dismiss the case. However, under the Ohio Supreme Court case Genaro v. Cent. Transport, Inc., the Supreme Court of Ohio held that supervisors can be held jointly and/or severally liable under Ohio law R.C. § 4112.01. In our brief to the court our attorneys expertly pointed out:
The definition of “Employer” under R.C. § 4112.01(A)(2) includes “any person acting directly or indirectly in the interest of an employer.” Further, R.C. § 4112.01(A)(1) provides, in part that “‘Person’ includes one or more individuals.” Applying subsection (A)(1) to subsection (A)(2) plainly provides: “any [“one or more individuals”] acting directly or indirectly in the interest of an employer.” As such, there should be no debate that individuals can be liable under R.C. § 4112.01(A)(2).
In Musarra’s case the supervisors are undisputedly “one or more individuals,” who were acting directly or indirectly in the interest of the hospital, an employer; and thus, can be liable under R.C. § 4112.02(A)
The supervisors attempted to argue that the Ohio Supreme Court’s decision in Hauser v. Dayton Police Department overturned Genaro, and that supervisors could not be held individually responsible for harassing, and retaliating against employees. However, the defendants read the law incorrectly. Hauser only applies to employees of a political subdivision. As our attorneys explained to the court:
The Supreme Court of Ohio’s 2014 decision in Hauser has only one holding: “Reading the statute as a whole and consistently with the legislative intent behind R.C. Chapter 4112, we conclude that R.C. 4112.01(A)(2) and 4112.02(A) do not expressly impose civil liability on political-subdivision employees so as to exempt them from immunity under R.C. 2744.03(A)(6)(c), but rather subject a political-subdivision employer to vicarious liability for the discriminatory acts of its employees.”
Still a little confused? Don’t worry the Courts usually are too, Judge Boyko held as much in his ruling on the defendant’s motion to dismiss:
Thankfully, Judge Boyko agreed with our attorney’s argument that Genaro is still good law, and that individual supervisors can be held liable for violations of R.C. 4112.02. In his opinion Judge Boyko wrote:
Nevertheless, in Hauser, the Ohio Supreme Court made clear that its decision did not overrule Genaro. Further, the Ohio General Assembly has amended R.C. 4112.01 five times since Genaro was issued and decided not to address the precedent through legislation. Genaro therefore remains good law.
To read Judge Boyko’s full decision click Here.
To put this ruling more clearly this means that Hauser was a separate, distinguishable case from Genaro, limited to public sector supervisor liability only. So unfortunately, supervisors who work in public sector jobs such as firefighters, municipal workers, and police officers are immune from individual liability for harassment and retaliation. Note, this doesn’t mean that a victim cannot sue the larger organization such as the fire and police departments, or the city. But supervisors who work in the private sector, which is the vast majority of jobs can be held individually liable for harassment and retaliation.
This is a great decision by Judge Boyko. It hammers home the point that supervisors cannot escape liability when they harass or discriminate against their employees. Too often the blame for discrimination and harassment falls solely upon the company where the victim worked. While it is true that these companies should be held responsible for allowing the harassment to occur the individuals who actually engage in the harassing conduct are often forgotten. Decisions like Genaro and the hard-fought victory our attorneys won in the case of Musarra are a great step in achieving true justice for victims of discrimination and harassment. The attorneys at The Spitz Law Firm do not let these harassers off the hook so easily. If you have been harassed by a supervisor than you need to call the right attorney.
Discrimination and harassment, especially by a supervisor, that is based on race/color, religion, gender/sex, national origin, age, disability discrimination and military status is illegal under Ohio law is R.C. § 4112.02. If you have been discriminated against based on your race, color, religion, sex, military status, national origin, disability, age, or ancestry you should not wait to call the right attorney to schedule a free and confidential consultation. Call our office at 866-797-6040. At The Spitz Law Firm, you will meet with an expert employment law attorneys to find out what your legal rights are and the best way to protect them. Discrimination based on a protected class is illegal, and employers, including supervisors should be held accountable if they discriminate against their employees in any fashion. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from harassment and discrimination.
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