Harris v. Pameco Corp.
2000 Ore. App. LEXIS 1671, 12 P.3d 524, 170 Or.App. 164 (2000)
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Rule of Law:
Oregon law prohibits same-sex sexual harassment and retaliatory discharge for opposing such practices, consistent with federal Title VII interpretation, and an employer can be vicariously liable for a supervisor's intentional torts if those acts are an outgrowth of employment duties.
Facts:
- Plaintiff worked for Pameco as a branch manager, and Wally George supervised plaintiff as regional manager, frequently interacting at work and off-site Pameco meetings.
- George had an intimidating supervisory style and would often touch male employees by rubbing their necks or putting his arm around them, while also saying “hugs and kisses.”
- Plaintiff previously discussed with George his views on homosexuality, making it clear he believed it was not conducive to good family values or morals.
- In January 1993, at a Pameco meeting in Las Vegas, George put his arm around plaintiff, and the next morning, George invited plaintiff to his room, answered the door in boxer shorts, got into bed, and asked plaintiff why he “didn’t * just get in bed.”
- In the following months, George repeatedly touched plaintiff at work, including massaging his neck, sitting with knees almost touching plaintiff, and placing his palm on the inside of plaintiff’s left leg with fingers up his thigh.
- George told plaintiff, “Well, if you do over $350,000, I’ll give you a big wet kiss and tongue,” and in February 1994, he asked plaintiff, “Does that mean I cannot invite you to my bed?”
- Plaintiff became depressed as a result of George’s conduct.
- Plaintiff's employment with Pameco ended, and he filed suit in May 1994 related to George's conduct.
Procedural Posture:
- Plaintiff filed an action against Wally George and Pameco in May 1994.
- Plaintiff's amended complaint included claims for battery, intentional infliction of emotional distress (IIED), negligence, wrongful discharge under common law, and employment discrimination under ORS 659.030(1)(b) and (1)(f).
- At the close of plaintiff's case, the trial court granted directed verdicts on plaintiff's claims for battery and IIED against George and Pameco, on some allegations of negligence, and on the ORS 659.030(1)(b) claim against Pameco.
- A jury returned a verdict for Pameco on plaintiff's common-law wrongful discharge claim.
- At the close of all the evidence, the trial court granted directed verdicts on the remaining negligence allegation and on plaintiff's claim under ORS 659.030(1)(f) against Pameco.
- After the trial, the court awarded costs to both defendants and attorney fees to Pameco.
- Plaintiff appealed the trial court's directed verdicts and awards of costs and attorney fees to the Oregon Court of Appeals.
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Issue:
Did the trial court err by granting directed verdicts, thereby denying a jury trial, on a plaintiff's claims for battery, intentional infliction of emotional distress (IIED), and retaliatory discrimination under ORS 659.030(1)(f), including whether same-sex sexual harassment claims are cognizable under Oregon's anti-discrimination statute?
Opinions:
Majority - Edmonds, P.J.
Yes, the trial court erred in granting directed verdicts on plaintiff's claims for battery, intentional infliction of emotional distress (IIED) against George and Pameco (on a theory of vicarious liability), and for retaliatory discrimination under ORS 659.030(1)(f) against Pameco. The trial court did not err in directing verdicts on the negligence claims or the direct discrimination claim under ORS 659.030(1)(b) against Pameco. For the battery claim, a jury could reasonably infer that George's touching was sexual and offensive, especially in light of plaintiff's previously expressed views on homosexuality and his reactions. A jury could also infer George knew his conduct would be objectively offensive given the context and course of conduct. For the IIED claim, sufficient evidence existed for a jury to infer George intended to inflict severe emotional distress, as he was aware of plaintiff's views and subjected him to unwelcome touching and comments. The court determined that George’s physical contact in conjunction with his statements could constitute a course of sexual harassment, falling outside the bounds of socially tolerable conduct, particularly within the context of an employer-employee relationship. Pameco could be vicariously liable for George's battery and IIED. The court found that a jury could reasonably find that George’s conduct, although tortious, resulted from or was an outgrowth of the exercise of his supervisory employment duties. Regarding the negligence claims against Pameco, the Workers' Compensation Act’s exclusivity provision bars such claims when the injury is not proximately caused by willful and unprovoked aggression. The court affirmed that “willful” in the statutory exception means deliberate and intentional acts, which is distinct from negligence, thus precluding a negligence claim in this context. For the direct discrimination claim under ORS 659.030(1)(b), the court found insufficient evidence that Pameco knew or should have known of the specific harassment and failed to take prompt remedial action during the time plaintiff was employed. Pameco did promptly investigate upon receiving plaintiff's formal complaint. However, the trial court erred in dismissing the retaliatory discharge claim under ORS 659.030(1)(f). Following the U.S. Supreme Court's ruling in Oncale v. Sundowner Offshore Services, Inc., which interpreted Title VII (the model for ORS 659.030), the court concluded that same-sex sexual harassment claims are cognizable under the statute. The statutory language does not bar a claim of discrimination simply because the harasser and victim are of the same sex. The crucial question of whether George’s conduct constituted discrimination “because of sex” is a factual determination for the jury, not a question of law for the trial court to dismiss via a directed verdict. Thus, plaintiff presented sufficient evidence to survive a directed verdict motion on the retaliatory discharge claim.
Analysis:
This case significantly clarifies and expands the scope of anti-discrimination law in Oregon by confirming that same-sex sexual harassment is actionable under ORS 659.030, aligning state law with federal Title VII jurisprudence established by Oncale. It reiterates that the motivation for harassment need not be sexual desire, but rather that the conduct constitutes discrimination 'because of sex.' Furthermore, the decision provides important guidance on employer vicarious liability for supervisors' intentional torts, emphasizing that the acts must be an 'outgrowth of employment duties,' rather than necessarily serving the employer's interest. This ruling reinforces protections for employees against hostile work environments, regardless of the harasser's or victim's gender, and holds employers accountable for supervisory misconduct arising from their roles.
