Brown v. Ford
| Decision Date | 03 October 1995 |
| Docket Number | No. 84773,84773 |
| Citation | 905 P.2d 223,1995 OK 101 |
| Parties | 76 Fair Empl.Prac.Cas. (BNA) 985, 68 Empl. Prac. Dec. P 44,162, 1995 OK 101 Renee BROWN, Plaintiff, v. Jon R. FORD, an individual, and Jon R. Ford Attorney, Inc., Defendants. |
| Court | Oklahoma Supreme Court |
Shannon F. Davies, Brent A. Austin, Lester & Bryant, Oklahoma City, for plaintiff.
David W. Lee, Lee, Collins & Fields, Oklahoma City, for defendants.
The United States District Court for the Western District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:
1. Does a cause of action for sexual harassment in the form of hostile work environment exist in Oklahoma when an employer has fewer than 15 employees?
2. Does a cause of action exist for sexual battery in the workplace?
3. If the answer to question two is "Yes," must Plaintiff show that Defendant knew the touchings were unwanted as an essential element of the claim?
4. Does the public policy reflected in the Oklahoma Anti-Discrimination Act provide an exception to Oklahoma's terminable-at-will employment doctrine that permits a cause of action for retaliatory termination based on the refusal to condone sexual touching when the employer has fewer that 15 employees?
5. If the answer to question 5 [sic 4] is "Yes," does the doctrine of after-acquired evidence of employee misconduct bar all relief in an action for retaliatory termination?
As we understand the first question, it asks whether a common-law action for wrongful discharge in culmination of work-related (or on-the-job) sexual harassment would lie against an employer with fewer than fifteen employees. By the second question, our attention is invited to whether Oklahoma recognizes a private cause of action for "sexual battery". The first and fourth certified questions are answered in the negative. In response to the second question, we declare that Renee Brown's [Brown or plaintiff] claim would be actionable as a common-law tort of assault and battery. We hence need not pause to consider whether the provisions of 21 O.S.1991 § 1123(B) 1 afford the basis for a tort claim. Our answers to the second and fourth questions make a response to the third and fifth 2 queries unnecessary.
Brown was employed as a paralegal by Jon R. Ford Attorney, Inc. [Firm], presumably a professional corporation, from March 5, 1992 until July 16, 1992. During this period the Firm employed a maximum of five persons, including both Brown and Jon R. Ford [Ford]--the latter its sole shareholder. The plaintiff complains that during her employment Brown brought suit against the Firm and Ford [defendants] for, among other things, sexual harassment, wrongful termination and "sexual battery". After denying the defendants' quest for summary judgment, the federal court certified the questions now before us.
Ford, without her consent, "sexually touched" her on several occasions. She eventually confronted him and requested that he discontinue the advances--which he did. Brown asserts that her rejection of his sexual advances motivated certain employment decisions that changed her earlier work requirements--i.e., created a hostile work environment--which ultimately led to her dismissal by the Firm.
THE NATURE OF THIS COURT'S FUNCTION WHEN ANSWERING QUESTIONS
While the actionability of state-law claims identified in the submitted questions may be tested when answering the questions posed, it is not this court's province to intrude (by responses to be given) upon the federal court's decision-making process. Because the case is not before us for decision, we refrain, as we must, from (a) applying the declared state-law responses to the facts elicited or to be elicited in the federal-court litigation and (b) passing upon the effect of federal procedure on the issues, facts and proof in the case (whether made by evidence at trial or by acceptable probative substitutes called "evidentiary materials" for use in the summary process of adjudication). 3 The task of analyzing the impact of today's answers must be and hence is deferred to the certifying court.
A STATE-LAW CLAIM FOR WRONGFUL DISCHARGE IN CULMINATION OF
WORK-RELATED SEXUAL HARASSMENT, WHETHER IT BE RESTED ON
STATUTE4 OR COMMON LAW, CANNOT BE PRESSED
Brown's argument would have us conclude that the legislature's refusal to extend the sexual harassment remedy to persons engaged in a workplace of less than fifteen employees is constitutionally infirm when measured by the equal protection standards. 6 Under the U.S. CONST. amend. XIV, § 1, 7 if legislative classifications are neither violative of a constitutional or fundamental right 8 nor based upon a suspect classification In enacting 25 O.S.1991 §§ 1101 et seq., Oklahoma's Anti-Discrimination Act, the legislature doubtless sought to avoid imposing upon small shops the potentially disastrous expense of defending against a state-law claim for workplace discrimination, whether based upon offending sexual conduct or on other grounds. We do not find this legislatively declared objective offensive to the Fourteenth Amendment's equal protection clause, to our own fundamental law, or to extant State jurisprudence. Neither private employment 16 nor freedom from sexual harassment within the workplace environment 17 is a fundamental right which must be surrounded by the shield of state law. The legislative purpose in enacting 25 O.S.1991 § 1302 18 bears a rational relationship to a permissible state objective and the challenged statute is gender neutral. In short, only where the employer has fifteen or more employees does the enactment under consideration cover offending sexual conduct in the workplace, regardless of the actor's or the victim's gender.
--i.e., race, 9 gender, 10 illegitimacy 11 or alienage, 12 they must be deemed presumptively valid so long as they are found to be rationally related to legitimate state interests. 13 A legislature is vested with wide discretion in passing laws which have the inevitable effect of treating some people differently from others. 14 These principles, which accord with federal and Oklahoma fundamental law and with this State's extant jurisprudence, recognize the power of the legislature to classify people for disparate substantive-law treatment. 15
THE STATUTORY CLAIM
Work-related sexual discrimination is remediable against an employer 19 in an administrative proceeding brought under the provisions of 25 O.S.1991 §§ 1101 et seq. [Oklahoma's Anti-Discrimination Act]. 20 The cited act defines an employer as a legal entity having fifteen or more employees. 21
The plaintiff may not successfully pierce this Act's validity by attacking 22 the statutorily set numerical minimum as offensive to OKL. CONST. art. 5, § 46. 23 The invoked constitutional provision interdicts only impermissible procedural 24 disparateness. 25 It does not strike at the legislative power to classify persons or things for dissimilar substantive-law treatment. 26 Since Brown's sexual harassment claim does not fall within the statute's criteria for actionability--her workplace having less than fifteen employees--she is not shielded by any legislatively articulated public policy protection. We need not speculate today on whether a discharge in culmination of work-related sexual harassment created by a hostile work environment 27 might be remediable, at common law, under the rubric of a public policy breach within the meaning of this court's pronouncement in Burk v. K-Mart Corporation. 28
As we understand the fourth question, it calls upon us to answer the following:
Is a discharge in culmination of (or connection with) work-related or on-the-job sexual harassment in breach of public policy and hence actionable under the Burk 29 exception?
The plaintiff presses us for a sweeping pronouncement which would hold that because the workplace discrimination provisions of Oklahoma's Anti-Discrimination Act declare an across-the-board public policy exception to the at-will employment doctrine, 30 her termination should be deemed actionable against the Firm as a common-law tort.
The body of our common law, which serves to supplement the corpus of statutory enactments, is powerless to abrogate the latter, either in whole or in part. 31
Validly expressed legislative will must always control over contrary notions of the unwritten law. 32 When in pari materia, statutory law and the precepts of either pre-existing or after-declared common law are to be construed together as one consistent and harmonious whole. Once an interaction of the two sources has been measured by these principles, it is clear that even if Oklahoma's common law did recognize a discharge in culmination of work-related (or on-the-job) sexual harassment 33 as a Burk tort--a question which need not be answered today--Brown's common-law claim would not be actionable as a discharge in breach of public policy because her employer, who engaged fewer than fifteen employees, is outside the Act's purview
As stated earlier in this opinion, we will not pause to consider today whether the Burk exception may generally be invoked to press a claim for wrongful discharge in culmination of work-related (or on-the-job) sexual harassment by "hostile work environment" against an employer who is subject to statutory anti-discrimination remedies.
SINCE OKLAHOMA'S COMMON LAW AFFORDS BROWN A REMEDY UNDER THE
NOT NECESSARY TO REACH THE ISSUE WHETHER A PRIVATE TORT MAY
The tort of assault and battery need not be predicated on, or implied in, a criminal statute 35 [e.g., sexual battery--21 O.S.1991 § 1123(B) 36]. It...
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