In the case of Kubala v. Smith, 2023-Ohio-991, an appellate court held that a manager’s sexual harassment towards the engineer, if true, could qualify as an exception to the statutory immunity protections provided in R.C. 2744.03.
In this case, the engineer argued that (1) the manager acted outside of the scope of the manager’s employment when the manager made inappropriate and sexually suggestive comments toward the manager’s employee and (2) a jury could find the manager’s actions were either willful, as the manager deviated from the duty to not sexually harass employees; in bad faith, as the manager was conscious that the comments violated Ohio’s anti-discrimination laws; or with malice, as the engineer asked the manager to stop but the manager refused. In response, the manager argued that (1) only two of the alleged comments were made outside of the workday, and the rest should be considered workplace discussion and (2) the manager’s comments were just “simple teasing” and “offhand comments.” The appellate court agreed with the engineer.
In support of its decision in favor of the engineer, the appellate court explained that whether an employee is acting within the scope of employment generally is a question of fact to be decided by a jury, and questioned how the sexually hostile conduct could “further or promote any interest” of the county. The appellate court further explained that there is evidence that the manager intentionally tried to cause the engineer harm, or at least, with a conscious disregard of or indifference to the risk of harm the manager’s comments would have on the engineer.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.