Hampel v. Food Ingredients Specialties, Inc.

[This opinion has been published in Ohio Official Reports at 

89 Ohio St.3d 169

.]




     HAMPEL, APPELLANT, v. FOOD INGREDIENTS SPECIALTIES, INC. ET AL.,
                                       APPELLEES.
     [Cite as Hampel v. Food Ingredients Specialties, Inc., 

2000-Ohio-128

.]
Civil rights—Unlawful discriminatory practices—Establishing violation of R.C.
        4112.02(A)—Requirements to establish claim of hostile-environment
        sexual harassment—R.C. 4112.02(A) protects men as well as women from
        all forms of sex discrimination in the workplace—Harassing conduct that
        is simply abusive, with no sexual element, can support a claim for hostile-
        environment sexual harassment, when—Determining whether harassing
        conduct was “severe or pervasive” enough to affect conditions of
        plaintiff’s employment.
1.      A plaintiff may establish a violation of R.C. 4112.02(A)’s prohibition of
        discrimination “because of * * * sex” by proving either of two types of
        sexual harassment: (1) “quid pro quo” harassment, i.e., harassment that is
        directly linked to the grant or denial of a tangible economic benefit, or (2)
        “hostile environment” harassment, i.e., harassment that, while not affecting
        economic benefits, has the purpose or effect of creating a hostile or abusive
        working environment.
2.      In order to establish a claim of hostile-environment sexual harassment, the
        plaintiff must show (1) that the harassment was unwelcome, (2) that the
        harassment was based on sex, (3) that the harassing conduct was sufficiently
        severe or pervasive to affect the “terms, conditions, or privileges of
        employment, or any matter directly or indirectly related to employment,”
        and (4) that either (a) the harassment was committed by a supervisor, or (b)
        the employer, through its agents or supervisory personnel, knew or should
                            SUPREME COURT OF OHIO




       have known of the harassment and failed to take immediate and appropriate
       corrective action.
3.     R.C. 4112.02(A) protects men as well as women from all forms of sex
       discrimination in the workplace, including discrimination consisting of
       same-sex sexual harassment.
4.     Harassing conduct that is simply abusive, with no sexual element, can
       support a claim for hostile-environment sexual harassment if it is directed
       at the plaintiff because of his or her sex. However, harassment is not
       automatically discrimination because of sex merely because the words used
       have sexual content or connotations.
5.     In order to determine whether the harassing conduct was “severe or
       pervasive” enough to affect the conditions of the plaintiff’s employment,
       the trier of fact, or the reviewing court, must view the work environment as
       a whole and consider the totality of all the facts and surrounding
       circumstances, including the cumulative effect of all episodes of sexual or
       other abusive treatment.
6.     The social context in which particular behavior occurs and is experienced
       by its target is a relevant factor in judging the objective severity of
       harassment; however, sexual harassment that meets the statutory
       requirements is not excusable solely because it consists of conduct that is
       commonplace.
     (No. 99-55 — Submitted November 30, 1999 — Decided June 21, 2000.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 73143.
                              __________________
       {¶ 1} This cause arises from a jury verdict in favor of plaintiff-appellant,
Laszlo J. Hampel, on his claims for sexual harassment and intentional infliction of
emotional distress against his former supervisor, defendant-appellee Jerry Hord,




                                        2
                                January Term, 2000




and former employer, defendants-appellees Food Ingredients Specialties, Inc.,
Nestle Food Company, and Nestle USA, Inc. (collectively, “FIS-Nestle”).
        {¶ 2} On April 17, 1995, Hampel was working as a cook for FIS-Nestle.
His job involved cooking thousands of pounds of meat at a time, using
electronically controlled steam injected kettles to produce a blended product. Work
was particularly stressful that night, and Hampel became frustrated over not having
enough bins for the finished food product, which was an ongoing problem. He
went to Hord to complain about the situation, and the following dialogue took place
in the presence of Hampel’s coworkers:
        Hampel: “I’m fed up with the way things are running around here, all this
product, and no bins to put it in. One of these days I’m going to blow.”
        Hord: “Hey, Laz, you can blow me.”
        Hampel: “What did you say?”
        Hord: “I said, you can suck my dick.”
        Hampel: “I’m frustrated because there are no bins and you tell me to suck
your dick? I don’t want to think my supervisor is a faggot.”
        Hord: “But Laz, I only want you to suck my dick. You’re the only man in
the world that I want to suck my dick. Danny and Ed don’t do anything for me.”
        Hampel: “Man, you’re sick.”
        Coworker: “That is really sick, Jerry.”
        Hord: “But, Laz, I want you to taste my cum and go, umm, umm, umm,
and I want you to wear my pearl necklace.”
        Hampel: “Man, you’re really sick. I’m out of here.”
        {¶ 3} At the end of his shift, Hampel went to Hord’s office and told Hord
that his remarks were degrading, humiliating, and offensive. Hord responded that
“if you don’t like it, quit.”
        {¶ 4} Hampel came to work early on April 18, 1995, and lodged a grievance
with Ingoff Nitsch, vice-president of manufacturing. Nitsch took Hampel to see




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                             SUPREME COURT OF OHIO




Lori Foss, manager of employee services, and Daniel Mullen, manager of process
control, and the three of them questioned Hampel about the incident. Hampel got
the impression that “[t]hey were trying to make me feel like I was the one who did
something wrong, like I was a criminal being interrogated. * * * It was almost as if
they were upset with me for doing this to Jerry.” Later that day, Hord apologized
to Hampel, but Hampel, believing the apology to be insincere, said nothing and
Hord walked away. The following day, April 19, 1995, Hampel put his grievance
in writing, and the day after that Hord filed a report warning Hampel for doing a
poor job of cleaning.
       {¶ 5} Foss and Mullen investigated the incident, concluded that it happened
as reported by Hampel, and gave Hord a written warning, which is at the lower end
of possible corrective action. Mullen then informed Hampel that Hord would be
reprimanded, but did not reveal the nature of the reprimand. However, Hampel told
Mullen that he could no longer work for Hord and asked if he or Hord could be
moved. Mullen responded in the negative and Hord continued as Hampel’s
supervisor. A short time later, however, Hord rotated to another area and, until
January 1996, his shift overlapped Hampel’s for only an hour on Mondays.
       {¶ 6} Nevertheless, between April 1995 and January 1996, Hord continued
to harass Hampel. He constantly watched Hampel, criticized him for minute or
minor details, reported him for cleaning errors, and denied him shortcuts in his work
that Hord allowed to other employees and previously to Hampel. On slow nights,
when other employees would request to leave work early, Hord would grant the
request without inspecting their work. However, whenever Hampel made such a
request, Hord would “tur[n] everything inside out, looking for anything he could
find, and he usually always did. And on many occasions he would make me clean
and clean and reclean again.” On one occasion, Hord took a white cotton glove to
inspect Hampel’s cleaning and went around showing the grease on the glove. On
another occasion, Hord ran up to Hampel, stood six inches from Hampel’s face,




                                         4
                                January Term, 2000




and shouted, “you get out of my department right now. I don’t ever want to see
you again.”
       {¶ 7} During this time, Hord received two merit pay increases, while
Hampel applied for and was refused several position changes that would have
transferred him away from Hord or placed him in a position where Hord would not
be his supervisor.
       {¶ 8} In January 1996, Hord was reassigned as Hampel’s full-time
supervisor. One day early that month, Hord asked Hampel if he would be interested
in taking a job as cook on the day shift. Although Hampel did not like to work
days, he expressed interest in the job because it would allow him to get away from
Hord. However, a coworker, Michael Conrad, told Hampel that he heard Hord
make a comment about following Hampel to the day shift. Hampel was enraged
and his coworkers began to tease him about Hord following him to the day shift.
Hord was aware of this, but did nothing to stop the torment or assure Hampel that
he had no such intent.
       {¶ 9} On January 5, 1996, Hampel told Mullen and Nitsch that he was
concerned about Hord following him to the day shift, and Mullen investigated.
Mullen concluded that the incident was the result of a prank perpetrated entirely by
some of Hampel’s coworkers without any influence or participation from Hord.
Nevertheless, he and Foss told Hord to file an incident report against Hampel,
which Hord did but later withdrew. Mullen then typed a report of his investigation,
after destroying his original handwritten notes, which was placed in Hampel’s
personnel file. The report states: “We are going to recognize Jerry’s counter
charges. * * * If [Conrad’s] testimony does not contradict the others, Lori and I will
have to talk to Laszlo about the counter charges and warn him that any false
statements in the future could mean up to and including termination.” The report
also indicates that some employees “told me about Laszlo going out with an
eighteen or nineteen year old girl and every night he parades around showing his




                                          5
                                 SUPREME COURT OF OHIO




neck full of ‘sucker bites,’ “ and concludes that “[i]t looks to me like Laszlo likes
to ‘give it’ but can’t take it.”
        {¶ 10} As a result of these events, Hampel became depressed, homicidal,
drained, and exhausted. He had recurring nightmares about Hord holding a gun to
his head and demanding oral sex. He felt victimized, violated, and “totally raped.”
He experienced stomach cramps, shortness of breath, and sleeping problems. He
was diagnosed as suffering from depression, post-traumatic stress disorder, and
severe emotional distress. Hampel took a medical leave of absence on March 7,
1996, and resigned from work on May 15, 1996.
        {¶ 11} Hampel filed suit in the Cuyahoga County Court of Common Pleas,
claiming that appellees violated R.C. Chapter 4112 by subjecting him to a sexually
hostile work environment and retaliating against him for complaining about sexual
harassment, and that they intentionally caused him severe emotional distress. The
case proceeded to trial by jury and, after denying appellees’ motions for directed
verdict, the trial court submitted all three claims to the jury.
        {¶ 12} The jury returned with verdicts and answers to ten interrogatories.
The verdict forms indicate that the jury awarded compensatory damages to Hampel
in the amount of $368,750 on his claims for sexual harassment and intentional
infliction of extreme emotional distress against Hord and FIS-Nestle, and assessed
punitive damages against FIS-Nestle in the amount of $1,280,000. The answers to
interrogatories reveal that the jury found for Hampel on the issues of sexual
harassment, intentional infliction of emotional distress, and malice, and against
Hampel on the issue of retaliatory conduct.1




1. The jury’s answers to the interrogatories submitted are as follows:
         Interrogatory No. 1: “Was Plaintiff subjected to unwelcome sexual harassment during his
employment at FIS?” Answer: Yes.
         Interrogatory No. 2: “Was Mr. Hord’s April 17, 1995 conduct based upon sex?” Answer:
Yes.




                                               6
                                    January Term, 2000




        {¶ 13} The trial court denied appellees’ post-trial motions for judgment
notwithstanding the verdict (“JNOV”) and for a new trial, and entered judgment
upon the verdict.
        {¶ 14} The court of appeals reversed the judgment of the trial court on
Hampel’s claim for sexual harassment, finding no evidence to support the
conclusion that Hord’s conduct was based on sex, and remanded the cause for a
new trial on Hampel’s claim for intentional infliction of emotional distress.
Although the court found the evidence sufficient to support an award of
compensatory and punitive damages for intentional infliction of emotional distress,
and found no error with respect to the trial or submission of that claim, it remanded
the cause for a new trial on that issue because it was unable to ascertain from the
record whether, and to what extent, the jury would have awarded damages solely
for the intentional infliction of emotional distress claim.
        {¶ 15} Subsequently, Hampel filed a motion for reconsideration pursuant to
App.R. 26(A), arguing that the judgment should be affirmed pursuant to the
application of the “two issue” rule. The court of appeals denied the motion, finding
that the two-issue rule does not apply where there is a charge on an issue upon


        Interrogatory No. 3: “Would the complained of conduct unreasonably interfere with the
work performance of a reasonable person or create an intimidating, hostile or offensive work
environment for that reasonable person?” Answer: Yes.
        Interrogatory No. 4: “Did FIS take measures that were both timely and reasonable and
were such measures appropriate as to punishment of Hord?” Answer: No. “And were such
measures appropriate to prevent a reoccurrence?” Answer: No.
        Interrogatory No. 5: “Did FIS engage in retaliatory conduct against Plaintiff?” Answer:
No.
        Interrogatory No. 6: “Did FIS make Plaintiff’s working conditions so intolerable that a
reasonable person under the circumstances would have felt compelled to resign?” Answer: Yes.
        Interrogatory No. 7: “Did Defendants intentionally or recklessly act in an extreme and
outrageous manner?” Answer: Yes.
        Interrogatory No. 8: “Would a reasonable person, normally constituted, be able to cope
adequately with the mental distress caused by Defendant’s conduct?” Answer: No.
        Interrogatory No. 9: “Was the Defendants’ conduct a proximate cause of Plaintiff’s mental
anguish?” Answer: Yes.
        Interrogatory No. 10: “Did Defendants act with malice toward Plaintiff?” Answer: Yes.




                                               7
                             SUPREME COURT OF OHIO




which there should have been no charge. “Because one claim was submitted to the
jury in error, and the damages awarded on each claim cannot be differentiated, a
new trial on the other claim should be ordered.”
       {¶ 16} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
                               __________________
       The Simon Law Firm, P.L.L., Ellen S. Simon and Christopher P. Thorman,
for appellant.
       Arter & Hadden and Irene C. Keyse-Walker; and Mary Lee Pilla, for
appellees.
                               __________________
       ALICE ROBIE RESNICK, J.
       {¶ 17} We are asked to determine whether the evidence presented in this
case is sufficient to withstand a motion for directed verdict or JNOV on appellant’s
claim for sexual harassment and, if not, whether the submission of that claim to the
jury was sufficiently prejudicial to warrant a new trial on appellant’s claim for
intentional infliction of emotional distress.
                                           I
                             SEXUAL HARASSMENT
       {¶ 18} As relevant here, R.C. 4112.02(A) makes it an unlawful
discriminatory practice “[f]or any employer, because of the * * * sex * * * of any
person, * * * to discriminate against that person with respect to hire, tenure, terms,
conditions, or privileges of employment, or any matter directly or indirectly related
to employment.”
       {¶ 19} In prior cases, “we have determined that federal case law interpreting
Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S.Code,
is generally applicable to cases involving alleged violations of R.C. Chapter 4112.”




                                           8
                                   January Term, 2000




Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm.
(1981), 

66 Ohio St.2d 192, 196

, 

20 O.O.3d 200, 202

, 

421 N.E.2d 128, 131

.
                                           A
                     Hostile-Environment Sexual Harassment
       {¶ 20} In Meritor Sav. Bank, FSB v. Vinson (1986), 

477 U.S. 57, 64-66

, 

106 S.Ct. 2399, 2404-2405

, 

91 L.Ed.2d 49, 58-59

, the United States Supreme Court
rejected the view that Title VII is unconcerned with purely psychological aspects
of the workplace environment and, therefore, prohibits sexual harassment only
when it is directly linked to the grant or denial of an economic benefit. Recognizing
that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a
congressional intent ‘ “to strike at the entire spectrum of disparate treatment of men
and women” ‘ in employment,” 

id. at 64

, 

106 S.Ct. at 2404

, 

91 L.Ed.2d at 58

, the
high   court   explained    that    a   man    or   woman   should    not   have   to
“ ‘run a gauntlet of sexual abuse in return for the privilege of being allowed to work
and make a living.’ “ 

Id.,

477 U.S. at 67

, 

106 S.Ct. at 2405

, 

91 L.Ed.2d at 59

,
quoting Henson v. Dundee (C.A.11, 1982), 

682 F.2d 897, 902

.
       {¶ 21} Accordingly, the court held that “a plaintiff may establish a violation
of Title VII by proving that discrimination based on sex has created a hostile or
abusive work environment.” Id. at 66, 

106 S.Ct. at 2405

, 

91 L.Ed.2d at 59

. To do
so, the plaintiff must show that the harassing conduct was “sufficiently severe or
pervasive ‘to alter the conditions of [the victim’s] employment and create an
abusive working environment.’ “ 

Id. at 67

, 

106 S.Ct. at 2405

, 

91 L.Ed.2d at 60

,
quoting Henson, supra, 

682 F.2d at 904

.
       {¶ 22} In Harris v. Forklift Sys., Inc. (1993), 

510 U.S. 17, 21-22

, 

114 S.Ct. 367, 370

, 

126 L.Ed.2d 295, 302

, the court further explained:
       “Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the




                                           9
                             SUPREME COURT OF OHIO




victim does not subjectively perceive the environment to be abusive, the conduct
has not actually altered the conditions of the victim’s employment, and there is no
Title VII violation.”
       {¶ 23} However, the conduct need not be psychologically injurious to be
actionable. “A discriminatorily abusive work environment, even one that does not
seriously affect employees’ psychological well-being, can and often will detract
from employees’ job performance, discourage employees from remaining on the
job, or keep them from advancing in their careers. Moreover, even without regard
to these tangible effects, the very fact that discriminatory conduct was so severe or
pervasive that it created a work environment abusive to employees because of their
race, gender, religion, or national origin offends Title VII’s broad rule of workplace
equality.” 

Id.,

510 U.S. at 22

, 

114 S.Ct. at 370-371

, 

126 L.Ed.2d at 302

.
       {¶ 24} Accordingly, we hold that a plaintiff may establish a violation of
R.C. 4112.02(A)’s prohibition of discrimination “because of * * * sex” by proving
either of two types of sexual harassment: (1) “quid pro quo” harassment, i.e.,
harassment that is directly linked to the grant or denial of a tangible economic
benefit, or (2) “hostile environment” harassment, i.e., harassment that, while not
affecting economic benefits, has the purpose or effect of creating a hostile or
abusive working environment.
       {¶ 25} In order to establish a claim of hostile-environment sexual
harassment, the plaintiff must show (1) that the harassment was unwelcome, (2)
that the harassment was based on sex, (3) that the harassing conduct was
sufficiently severe or pervasive to affect the “terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment,” and (4)
that either (a) the harassment was committed by a supervisor, or (b) the employer,




                                         10
                                      January Term, 2000




through its agents or supervisory personnel, knew or should have known of the
harassment and failed to take immediate and appropriate corrective action.2
                                                 B
                                    Same-Sex Harassment
         {¶ 26} The parties agree, and the court of appeals accepted, that R.C.
4112.02(A) should be interpreted to accord with the United States Supreme Court’s
decision in Oncale v. Sundowner Offshore Serv., Inc. (1998), 

523 U.S. 75

, 

118 S.Ct. 998

, 

140 L.Ed.2d 201

. In Oncale, the high court held that sex discrimination
consisting of same-sex sexual harassment, whether quid pro quo or hostile
environment, is actionable under Title VII. In so holding, the court explained:
         “Title VII’s prohibition of discrimination ‘because of * * * sex’ protects
men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 

462 U.S. 669, 682

, [

103 S.Ct. 2622, 2630

, 

77 L.Ed.2d 89, 101

] (1983), and in the related
context of racial discrimination in the workplace we have rejected any conclusive
presumption that an employer will not discriminate against members of his own
race. ‘Because of the many facets of human motivation, it would be unwise to
presume as a matter of law that human beings of one definable group will not


2. Most courts also require the plaintiff to show that he or she belongs to a protected class, but we
find this requirement unnecessary; there are only two sexes and both of them are entitled to
protection under R.C. 4112.02(A). See, generally, 3 Larson, Employment Discrimination (2
Ed.2000) 46-121, Section 46.08[1][b]. As to the first requirement, that the alleged harassment was
unwelcome, see 

Vinson, supra,

477 U.S. at 68

, 

106 S.Ct. at 2406

, 

91 L.Ed.2d at 60

 (“The gravamen
of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome’ “). As to the
second and third requirements, they are statutorily mandated. Both the parties and the court of
appeals are in general agreement as to these requirements as set forth in Delaney v. Skyline Lodge,
Inc. (1994), 

95 Ohio App.3d 264, 270

, 

642 N.E.2d 395, 399-400

. However, the last requirement
listed in Delaney is “the existence of respondeat superior liability.” 

Id. at 270

, 

642 N.E.2d at 400

.
Although this description is not necessarily erroneous, the United States Supreme Court has since
established vicarious employer liability for unlawful harassment by supervisors, and the federal
courts uniformly apply a “known or should have known” test in determining an employer’s liability
for harassment by nonsupervisory coworkers or nonemployees. See Faragher v. Boca Raton
(1998), 

524 U.S. 775

, 

118 S.Ct. 2275

, 

141 L.Ed.2d 662

; Burlington Industries, Inc. v. Ellerth (1998),

524 U.S. 742

, 

118 S.Ct. 2257

, 

141 L.Ed.2d 633

; Shepherd, infra, 168 F.3d at 1004; 3 Larson, supra,
at 46-88 to 46-106, Sections 46.07[1] through [4].




                                                 11
                             SUPREME COURT OF OHIO




discriminate against other members of that group.’ Castaneda v. Partida, 

430 U.S. 482, 499

, [

97 S.Ct. 1272, 1282

, 

51 L.Ed.2d 498, 513

] (1977). * * * If our precedents
leave any doubt on the question, we hold today that nothing in Title VII necessarily
bars a claim of discrimination ‘because of * * * sex’ merely because the plaintiff
and the defendant (or the person charged with acting on behalf of the defendant)
are of the same sex.
       “***
       “We see no justification in the statutory language or our precedents for a
categorical rule excluding same-sex harassment claims from the coverage of Title
VII. As some courts have observed, male-on-male sexual harassment in the
workplace was assuredly not the principal evil Congress was concerned with when
it enacted Title VII. But statutory prohibitions often go beyond the principal evil
to cover reasonably comparable evils, and it is ultimately the provisions of our laws
rather than the principal concerns of our legislators by which we are governed. Title
VII prohibits ‘discriminat[ion] * * * because of * * * sex’ in the ‘terms’ or
‘conditions’ of employment. Our holding that this includes sexual harassment must
extend to sexual harassment of any kind that meets the statutory requirements.” 

Id.,

523 U.S. at 78-80

, 118 S.Ct. at 1001-1002, 

140 L.Ed.2d at 206-207

.
       {¶ 27} We too find the high court’s interpretation of Title VII in Oncale to
be both persuasive and applicable in interpreting R.C. 4112.02(A). Accordingly,
we hold that R.C. 4112.02(A) protects men as well as women from all forms of sex
discrimination in the workplace, including discrimination consisting of same-sex
sexual harassment.
                                         C
                          Harassment on the Basis of Sex
       {¶ 28} The court of appeals correctly observed that, since no tangible
employment action was taken in this case, appellant’s claim is based on the creation
of a hostile working environment. The court of appeals concluded, however, that




                                         12
                               January Term, 2000




appellant’s evidence was insufficient to satisfy the based-on-sex requirement. In
particular, the court found no evidence that Hord’s April 17, 1995 comments were
made to Hampel “because of his gender” (emphasis sic), and “no evidence of a
sexual motivation for Hord’s alleged harassment of [Hampel] after the April 17,
1995 incident.”
       {¶ 29} Harassment “because of * * * sex” is the sine qua non for any sexual
harassment case. “But harassing conduct need not be motivated by sexual desire
to support an inference of discrimination on the basis of sex.” 

Oncale, supra,

523 U.S. at 80

, 

118 S.Ct. at 1002

, 

140 L.Ed.2d at 208

. As Professor Larson points out,
the term “sexual,” as used to modify harassment, “can refer both to sex as the
immutable gender characteristic and to sex as describing a range of behaviors
associated with libidinal gratification.” 3 Larson, Employment Discrimination (2
Ed.2000) 46-34, Section 46.03[4]. Thus, actions that are simply abusive, with no
sexual element, can support a claim for sexual harassment if they are directed at an
employee because of his or her sex. Simply put, “[h]arassment alleged to be
because of sex need not be explicitly sexual in nature.” Carter v. Chrysler Corp.
(C.A.8, 1999), 

173 F.3d 693, 701

.
       {¶ 30} As explained in the oft-cited opinion in McKinney v. Dole
(C.A.D.C.1985), 

765 F.2d 1129

, 1138-1139:
       “We have never held that sexual harassment or other unequal treatment of
an employee or group of employees that occurs because of the sex of the employee
must, to be illegal under Title VII, take the form of sexual advances or of other
incidents with clearly sexual overtones. And we decline to do so now. Rather, we
hold that any harassment or other unequal treatment of an employee or group of
employees that would not occur but for the sex of the employee or employees may,
if sufficiently patterned or pervasive, comprise an illegal condition of employment
under Title VII.
       “***




                                        13
                             SUPREME COURT OF OHIO




       “Thus a continuing pattern of behavior that differentiates a particular
employee or group of employees because of sex violates the equal ‘conditions of
employment’ requirement of Title VII. Clearly, then, if a supervisor consistently
uses physical force toward an employee because of that employee’s sex, the use of
such force may, if pervasive enough, form an illegal ‘condition of employment.’
So too a pattern of mixed sexual advances and physical force may be illegally
discriminatory if based on the employee’s sex. Consistently disparate treatment,
however, need not take the form of actual physical assault and/or battery in the
classic sense. A pattern of threatened force or verbal abuse, if based on the
employee’s sex, may be illegally discriminatory. In fact, any disparate treatment,
even if not facially objectionable, may violate Title VII.”
       {¶ 31} There are many, often overlapping, motivations for sexual
harassment in the workplace, any one of which can be manifested in conduct as
varied and multiform as human behavior itself. Not surprisingly, abusive sex-based
conduct is frequently nonsexual or facially neutral in content or appearance. Any
presumption that discriminatory conduct based on sex will necessarily announce
itself as such would not only be unwise, but would create a means to circumvent
the very statutory prohibition against it. The wisdom of rejecting a rule that
excludes consideration of so-called nonsexual instances of harassment is reflected
not only in the fact that courts generally refuse it, but also in the broad range of
behaviors that comprise the sexual harassment claims in those cases. Williams v.
Gen. Motors Corp. (C.A.6, 1999), 

187 F.3d 553

; O’Shea v. Yellow Technology
Serv., Inc. (C.A.10, 1999), 

185 F.3d 1093

; Smith v. St. Louis Univ. (C.A.8, 1997),

109 F.3d 1261

; Kimzey v. Wal-Mart Stores, Inc. (C.A.8, 1997), 

107 F.3d 568

;
Gillming v. Simmons Industries (C.A.8, 1996), 

91 F.3d 1168, 1171

; Kopp v.
Samaritan Health Sys., Inc. (C.A.8, 1993), 

13 F.3d 264

, 269; Cortes v. Maxus
Exploration Co. (C.A.5, 1992), 

977 F.2d 195, 198-199

; Robinson v. Jacksonville
Shipyards, Inc. (M.D.Fla.1991), 

760 F.Supp. 1486, 1522-1523

; Andrews v.




                                         14
                               January Term, 2000




Philadelphia (C.A.3, 1990), 

895 F.2d 1469, 1485

; Hall v. Gus Constr. Co., Inc.
(C.A.8, 1988), 

842 F.2d 1010, 1013-1014

; Hicks v. Gates Rubber Co. (C.A.10,
1987), 

833 F.2d 1406, 1415

; Bell v. Crackin Good Bakers, Inc. (C.A.11, 1985), 

777 F.2d 1497

.
       {¶ 32} On the other hand, “workplace harassment, even harassment
between men and women, is [not] automatically discrimination because of sex
merely because the words used have sexual content or connotations.” 

Oncale, supra,

523 U.S. at 80

, 

118 S.Ct. at 1002

, 

140 L.Ed.2d at 207

. Oftentimes, the use
of certain vulgar expressions “has no connection with the sexual acts to which they
make reference * * * [and] they are simply expressions of [personal] animosity or
juvenile provocation,” rather than discrimination based on sex. Thus, “[a]lthough
explicit sexual content or vulgarity may often take a factfinder a long way toward
concluding that harassing comments were in fact based on gender, * * * this need
not necessarily be the case.” Johnson v. Hondo, Inc. (C.A.7, 1997), 

125 F.3d 408

,
412. Cf. Shepherd v. Slater Steels Corp. (C.A.7, 1999), 

168 F.3d 998

, 1010-1011.
       {¶ 33} Accordingly, we hold that harassing conduct that is simply abusive,
with no sexual element, can support a claim for hostile-environment sexual
harassment if it is directed at the plaintiff because of his or her sex. However,
harassment is not automatically discrimination because of sex merely because the
words used have sexual content or connotations.
                                        D
                              “Severe or Pervasive”
       {¶ 34} Appellees argue that “Hord’s isolated verbal outburst was not, as a
matter of law, sufficiently severe or pervasive as to alter the conditions of
employment in a significant way.”
       {¶ 35} But “the very term ‘environment’ indicates that allegedly
discriminatory incidents should not be examined in isolation.” Penry v. Fed. Home
Loan Bank of Topeka (C.A.10, 1998), 

155 F.3d 1257, 1262

. Instead, the issue of




                                        15
                            SUPREME COURT OF OHIO




“whether an environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances.     These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” 

Harris, supra,

510 U.S. at 23

, 

114 S.Ct. at 371

, 

126 L.Ed.2d at 302

. “The real social impact of workplace behavior often
depends on a constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation of the words used
or the physical acts performed.” 

Oncale, supra,

523 U.S. at 81-82

, 

118 S.Ct. at 1003

, 

140 L.Ed.2d at 208

.
       {¶ 36} The totality-of-the-circumstances standard precludes the kind of
analysis that carves the work environment into distinct harassing incidents to be
judged each on its own merits. Instead, it is essential that the work environment be
viewed as a whole, “keeping in mind that each successive episode has its
predecessors, that the impact of the separate incidents may accumulate, and that the
work environment created thereby may exceed the sum of the individual episodes.”

Robinson, supra,

760 F.Supp. at 1524

. Thus, “even where individual instances of
sexual harassment do not on their own create a hostile environment, the
accumulated effect of such incidents may result in a Title VII violation.” Williams,
supra, 

187 F.3d at 563

.
       {¶ 37} As one court so aptly put it, “A play cannot be understood on the
basis of some of its scenes but only on its entire performance, and similarly, a
discrimination analysis must concentrate not on individual incidents, but on the
overall scenario.” 

Andrews, supra,

895 F.2d at 1484

.
       {¶ 38} Along these same lines, it is generally understood that the “severe or
pervasive” requirement does not present two mutually exclusive evidentiary
choices, but reflects a unitary concept where deficiencies in the strength of one
factor may be made up by the strength in the other. See, e.g., Ellison v. Brady




                                        16
                                 January Term, 2000




(C.A.9, 1991), 

924 F.2d 872, 878

 (“the required showing of severity or seriousness
of the harassing conduct varies inversely with the pervasiveness or frequency of the
conduct”); 

Robinson, supra,

760 F.Supp. at 1524

 (“greater severity in the impact of
harassing behavior requires a lesser degree of pervasiveness in order to reach a level
at which Title VII liability attaches”). See, also, Lockard v. Pizza Hut, Inc. (C.A.10,
1998), 

162 F.3d 1062

. And since harassing conduct alleged to be because of sex
need not be explicitly sexual in nature, it follows that “[a] plaintiff may also be able
to testify to episodes of non-sexual abusive treatment, as well as to sexual conduct,
in order to establish the necessary pervasiveness.” 3 Larson, supra, at 46-74,
Section 46.05[4][b].
        {¶ 39} Accordingly, we hold that in order to determine whether the
harassing conduct was “severe or pervasive” enough to affect the conditions of the
plaintiff’s employment, the trier of fact, or the reviewing court, must view the work
environment as a whole and consider the totality of all the facts and surrounding
circumstances, including the cumulative effect of all episodes of sexual or other
abusive treatment.
                                           E
                             Commonplace Harassment
        {¶ 40} There is a current running through the court of appeals’ opinion and
appellees’ brief suggesting that sexually abusive workplace behavior is somehow
excusable merely because it is commonplace. We emphatically reject the notion
and hold that, while the social context in which particular behavior occurs and is
experienced by its target is a relevant factor in judging the objective severity of
harassment, sexual harassment that meets the statutory requirements is not
excusable solely because it consists of conduct that is commonplace.
        {¶ 41} In Oncale, supra, 

523 U.S. at 81

, 

118 S.Ct. at 1003

, 

140 L.Ed.2d at 208

, the high court explained:




                                          17
                               SUPREME COURT OF OHIO




        “In same-sex (as in all) harassment cases, [the objective severity] inquiry
requires careful consideration of the social context in which particular behavior
occurs and is experienced by its target. A professional football player’s working
environment is not severely or pervasively abusive, for example, if the coach
smacks him on the buttocks as he heads onto the field—even if the same behavior
would reasonably be experienced as abusive by the coach’s secretary (male or
female) back at the office.”
        {¶ 42} However, the coach’s described behavior toward his secretary would
not become any less abusive merely because he or other coaches generally engage
in such behavior. Otherwise, the sexually harassed plaintiff would be placed in the
anomalous position of defeating his or her own claim by virtue of proving the very
pervasiveness required to establish the claim in the first place. Indeed, it is difficult
to imagine that such conduct as described in Oncale would be acceptable anywhere
but on the playing field. In fact, the very same behavior, occurring elsewhere, has
been held “patently abusive and offensive—even though it happened infrequently
and for a short period.” Campbell v. Kansas State Univ. (D.Kan.1991), 

780 F.Supp. 755, 762

.
        {¶ 43} The high court never accepted that aspect of the social-context
argument that uses the pervasiveness of discriminatory behavior as a means to
diminish its impact. R.C. 4112.02(A), like Title VII, would never have been
enacted if the discriminatory conduct it prohibits were not at least pervasive enough
in our society to constitute a public social problem. “In enacting R.C. Chapter 4112
* * *, the General Assembly undoubtedly was responding to a public social
problem. Discrimination in its various forms drains our economic resources,
subverts the democratic process and undermines the general welfare.                 It is
inconceivable that the General Assembly, in passing this legislation, was
unconcerned with deterring such socially inimical business practices.” Cosgrove
v. Williamsburg of Cincinnati Mgt. Co., Inc. (1994), 

70 Ohio St.3d 281, 288

, 638




                                           18
                               January Term, 

2000 N.E.2d 991

, 996 (Resnick, J., concurring). As one court observed: “ ‘If the
pervasiveness of an abuse makes it nonactionable, no inequality sufficiently
institutionalized to merit a law against it would be actionable.’ “ Robinson, supra,

760 F.Supp. at 1526

, quoting MacKinnon, Feminism Unmodified (1987) 115.
       {¶ 44} Addressing this issue in 

Williams, supra,

187 F.3d at 564

, the Sixth
Circuit Court of Appeals explained:
       “Of course, the fact that a district court should look at the totality of
circumstances and the context of the alleged harassment does not mean that courts
can point to long-standing or traditional hostility toward women to excuse hostile-
work-environment harassment. At oral argument, [plaintiff’s] attorney asked the
court whether the conduct alleged in this case would be tolerated in our
courthouses. We believe it would not, and we reject the view that the standard for
sexual harassment varies depending on the work environment. * * *
       “***
       “We do not believe that a woman who chooses to work in the male-
dominated trades relinquishes her right to be free from sexual harassment; indeed,
we find this reasoning to be illogical, because it means that the more hostile the
environment, and the more prevalent the sexism, the more difficult it is for a Title
VII plaintiff to prove that sex-based conduct is sufficiently severe or pervasive to
constitute a hostile work environment. Surely women working in the trades do not
deserve less protection from the law than women working in a courthouse.”
       {¶ 45} Any holding to the contrary would amount to a judicial grandfather
clause preserving the very discriminatory practices proscribed by the statute.
                                         F
                           Sufficiency of the Evidence
       {¶ 46} We have no hesitation in finding that Hampel presented sufficient
evidence from which reasonable minds could conclude, when considering the
totality of all the facts and surrounding circumstances, that the harassing conduct




                                        19
                             SUPREME COURT OF OHIO




in this case was sufficiently severe or pervasive to affect the conditions of Hampel’s
employment. Construing the evidence most strongly in Hampel’s favor, Civ.R.
50(A)(4), it is apparent that, beginning with the April 17, 1995 incident, which by
all accounts was severe and shocking in the extreme, and continuing through
January 1996, Hord created a hostile and abusive working environment for Hampel.
Considering the evidence of Hord’s constant and unrelenting abusive conduct
toward Hampel, the fact that Hampel’s requests for transfer away from Hord were
denied while Hord received pay raises, and the disparaging information that Mullen
placed in Hampel’s file, the jury could reasonably conclude that Hampel was
subjected to a hostile and intimidating working environment.
        {¶ 47} The more difficult question in this case is whether reasonable minds
could conclude that the hostility directed at Hampel was based on sex. The April
17, 1995 episode is the only evidence upon which Hampel relies to raise an
inference of discrimination because of sex.        Hord’s language that day was
indisputably graphic and sexual in content, but the question is whether this language
provides a sufficient evidentiary basis to support an inference of sex discrimination
in this case.
        {¶ 48} Hampel argues that “the words used were so extreme and so
‘admittedly severe’ and graphic that they alone would support an inference that
Hord was soliciting sex.” According to Hampel, he should not have to prove that
“the individual who chose [such] language was actually motivated by sexual desire
or was in fact a homosexual. No similar burden attaches to a victim of opposite sex
harassment.”
        {¶ 49} In Oncale, the high court rejected the proposition that “workplace
harassment that is sexual in content is always actionable, regardless of the
harasser’s sex, sexual orientation, or motivations.” 

Id.,

523 U.S. at 79

, 118 S.Ct. at
1002, 

140 L.Ed.2d at 207

. The court explained that the inference of sexual desire
made in opposite-sex harassment situations involving “explicit or implicit




                                         20
                                January Term, 2000




proposals of sexual activity * * * would [also] be available to a plaintiff alleging
same-sex harassment, if there were credible evidence that the harasser was
homosexual.” 

Id. at 80

, 118 S.Ct. at 1002, 

140 L.Ed.2d at 208

.
       {¶ 50} However, no such credible evidence appears in this record. While
the harasser’s words and conduct themselves may sometimes suffice to raise the
inference of homosexuality or sexual desire circumstantially, the record in this case
points unequivocally to the fact that the expressive function of Hord’s language
was to mimic rather than reveal any actual sexual desire for Hampel.
       {¶ 51} Hampel further argues that because Hord testified that what he said
to Hampel “I wouldn’t say * * * to a woman,” Hord’s conduct can be construed to
reflect gender animus. In addition, Hampel argues, there is record evidence that
Hord preferred to work with women and conferred more favorable benefits on
female employees, which either bolsters the inference of gender animus or
constitutes direct comparative evidence of disparate treatment.
       {¶ 52} In the context of Hord’s testimony, however, his admission that he
would not have used the same language toward a woman reflects some personal
morality code, rather than an aversion to men in the workplace, and the record fails
to disclose any disparity in the way Hord treated male and female employees.
       {¶ 53} Thus, we agree with the court of appeals that “[t]he evidence in this
case points solely to the conclusion that Hord’s outburst against [Hampel] was
personal and not gender-based.” The same is true of all of Hord’s conduct. Hord
undoubtedly inflicted serious abuse upon Hampel, not because of his sex, but
because he was Hampel. However, R.C. 4112.02(A) does not reach disparate
treatment on account of personal animosity; no matter how severe or pervasive the
conduct, harassment does not constitute a discriminatory practice under R.C.
4112.02(A) unless based on a prohibited classification.




                                         21
                              SUPREME COURT OF OHIO




        {¶ 54} Accordingly, appellees’ motion for a directed verdict or JNOV
should have been granted on appellant’s sexual harassment claim, and the judgment
of the court of appeals is affirmed as to this issue.
                                           II
          INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
        {¶ 55} Having held that the sexual harassment claim should not have been
submitted to the jury, the question becomes whether it is necessary, in the interest
of substantial justice, to reverse the judgment of the trial court and remand the cause
for a new trial on appellant’s claim for intentional infliction of emotional distress.
        {¶ 56} “It is an elementary proposition of law that an appellant, in order to
secure reversal of a judgment against him, must not only show some error but must
also show that that error was prejudicial to him.” Smith v. Flesher (1967), 

12 Ohio St.2d 107, 110

, 

41 O.O.2d 412, 414

, 

233 N.E.2d 137, 140

. “[T]he so-called two-
issue rule necessarily results from this elementary proposition of law.” 

Id.

 at 110-
111, 

41 O.O.2d at 414

, 

233 N.E.2d at 140

.
        {¶ 57} The two-issue rule, which derives from this court’s holding in Sites
v. Haverstick (1873), 

23 Ohio St. 626

, has been defined variously depending upon
the context of its application. The definition chosen by both the parties and the
court of appeals in this case is that set forth in H.E. Culbertson Co. v. Warden
(1931), 

123 Ohio St. 297, 303

, 

175 N.E. 205

, 207:
        “This rule as generally applied is that, where there are two causes of action,
or two defenses, thereby raising separate and distinct issues, and a general verdict
has been returned, and the mental processes of the jury have not been tested by
special interrogatories to indicate which of the issues was resolved in favor of the
successful party, it will be presumed that all issues were so determined; and that,
where a single determinative issue has been tried free from error, error in presenting
another issue will be disregarded.”




                                          22
                                January Term, 2000




       {¶ 58} This case potentially implicates the so-called two-issue rule because
even though the jury returned interrogatories indicating which issues were resolved
in favor of appellant, the court of appeals determined that it remained unclear upon
which of those issues the damage awards were based, particularly the award for
punitive damages.
       {¶ 59} However, the two-issue rule “does not apply where there is a charge
on an issue upon which there should have been no charge.” Ricks v. Jackson (1959),

169 Ohio St. 254

, 

8 O.O.2d 255

, 

159 N.E.2d 225

, paragraph four of the syllabus.
In that event, “prejudice is generally presumed.” Wagner v. Roche Laboratories
(1999), 

85 Ohio St.3d 457, 461

, 

709 N.E.2d 162, 165

.
       {¶ 60} In Wagner, we determined that the giving of an instruction that
should not have been given is not always sufficiently prejudicial to justify a reversal
of the judgment. “Even if we assume for the purposes of argument that the
instruction should not have been given, we find that the record does not require
overturning the trial court’s decision to deny a new trial. Our specific disagreement
with the court of appeals’ approach is with the degree of prejudice that the court of
appeals apparently attributed to the giving of the instruction.” 

Id.,

85 Ohio St.3d at 461

, 

709 N.E.2d at 165

.
       {¶ 61} The dissent in Wagner disagreed with our “degree of prejudice”
approach, finding instead that “[t]he quantum of prejudice * * * is not the barometer
for application of the Ricks analysis.” 

Id.,

85 Ohio St.3d at 463

, 

709 N.E.2d at 167

(Cook, J., dissenting). However, just the opposite is true: “The opinion in [Ricks]
recognizes that the erroneous giving of a special request to charge may not be
sufficiently prejudicial to justify a reversal.” Smith, supra, 

12 Ohio St.2d at 114

,

41 O.O.2d at 416

, 

233 N.E.2d at 142

.
       {¶ 62} Despite the approach taken by the dissent in Wagner, and the court
of appeals in this case, Ricks does not purport to set forth a rule of mandatory or
automatic reversal whenever there is a charge on an issue upon which there should




                                          23
                              SUPREME COURT OF OHIO




have been no charge. To the contrary, Ricks provides that there may be instances
where such a charge can be regarded as not prejudicial. 

Id.,

 169 Ohio St. at 257, 8
O.O.2d at 257, 159 N.E.2d at 227. Otherwise, a reviewing court could order a new
trial upon a presumptive finding of prejudice where the record actually establishes
the contrary.
        {¶ 63} Upon a thorough review of the entire transcript of proceedings
before the trial court, it is our determination that the jury, if not instructed on sexual
harassment, would still have decided in appellant’s favor on his claim for
intentional infliction of emotional distress. The jury was instructed that although it
is possible that evidence supporting sexual harassment could also support a claim
for intentional infliction of emotional distress, “the two causes of action are
different; and your decision as to whether a claim under one theory is valid or
invalid would not necessarily control your decision as to the validity or invalidity
of the other cause of action.” The court further instructed that a claim for sexual
harassment “is limited to the workplace; it is dependent upon conduct based on
sex,” whereas a claim for intentional infliction of emotional distress “is not linked
to the workplace; it is not limited to conduct based on sex.”              As appellees
themselves have noted, “[t]he elements of a sexual harassment claim and an
intentional infliction of emotional distress claim are substantively different and
conclusions relating to the liability of one do not transfer to another.”
        {¶ 64} In addition, the evidence presented with regard to both claims was
identical. All relevant evidence that was presented in support of sexual harassment
was also relevant and admissible with regard to intentional infliction of emotional
distress. The jury was simply asked to make a determination with respect to
separate theories of recovery based on a single set of operative facts. Upon this
record, we cannot presume that appellees were prejudiced by the trial court’s
instruction on sexual harassment. Thus, Ricks is not applicable.




                                           24
                                January Term, 2000




        {¶ 65} Appellees argue, however, that “the interrogatories and verdict
forms reflect the jury’s focus on sexual harassment. In their original interrogatory
answers, the jury found facts which would support a claim for sexual harassment
only. The rejected verdict form that awarded compensatory damages against Hord
alone, states that the jury found for Hampel only on the claim of sexual harassment-
hostile work environment.” (Emphasis sic.) It appears that the trial court rejected
the jury’s initial answers to the interrogatories as inconsistent and that, in its
answers to the rejected interrogatories, the jury had checked both “yes” and “no”
on interrogatory No. 8, see fn. 1, but scratched out the word “no” and the check
next to it.
        {¶ 66} This argument was the substance of an assignment of error raised
below that the court of appeals overruled. Having failed to file a cross-appeal on
that issue, appellees are precluded from raising the argument here. Moreover, when
appellees raised this issue with the trial court, the trial court confirmed with the
jury, who had not yet been dismissed, that its intent was in fact to answer “no” to
interrogatory No. 8. We cannot conclude, therefore, that the jury at any time
intended to find against Hampel on his claim for intentional infliction of emotional
distress.
        {¶ 67} Since Ricks does not apply, resort to the two-issue rule is
appropriate. Given that appellees failed to request interrogatories that might have
explained the verdicts, we must presume that the awards were based on both claims;
and since one of these claims was tried free from error, error in presenting the other
will be disregarded. Thus, a new trial is not required.
        {¶ 68} Finally, appellees contend that some of the issues they raised in the
court of appeals are as yet unresolved, and that we should remand the cause to that
court for further consideration. We disagree, finding a remand on those issues to
be wholly unnecessary.




                                         25
                              SUPREME COURT OF OHIO




        {¶ 69} Since we have held that the court of appeals correctly decided in
favor of appellees on the sexual harassment claim, there is no need to remand for
further consideration as to the sufficiency of evidence to support that claim. The
grounds alleged by appellees in support of their new-trial assignment of error in the
court of appeals, except for one, do not raise any issues that the court of appeals has
not already addressed in conjunction with appellees’ other assignments of error.
The one issue that was not considered by the court of appeals was appellees’
contention that “[t]he trial judge’s partisan questioning of witnesses inflamed the
passion and prejudices of the jury.” However, we have reviewed the entire record
and find this contention to be unsupported. This case was truly and well tried,
without the intervention of any prejudicial error on the part of the trial court.
        {¶ 70} Accordingly, the judgment of the court of appeals is reversed as to
this issue, and the trial court’s judgment as entered on the jury’s verdicts is
reinstated.
                                                                  Judgment reversed.
        DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
        MOYER, C.J., and LUNDBERG STRATTON, J., concur in part and dissent in
part.
        COOK, J., dissents.
                               __________________


        MOYER, C.J., concurring in part and dissenting in part.
        {¶ 71} I concur in the syllabus law announced in the majority opinion.
However, I respectfully dissent from the decision of the majority because it changes
the law relating to the two-issue rule that has been consistently applied by this court
and other courts in Ohio.
        {¶ 72} The majority agrees that the trial court should not have given an
instruction on sexual harassment. It nevertheless affirms the full amount of the jury’s




                                          26
                                  January Term, 2000




verdict, including punitive damages in the amount of $1,280,000, based on its
“determination that the jury, if not instructed on sexual harassment, would still have
decided in appellant’s favor on his claim for intentional infliction of emotional
distress.”
        {¶ 73} But in failing to remand the cause for a new trial, at least as to the issue
of damages, the majority implicitly accepts the premise that the jury determined the
amount of its damages award based solely on a finding that plaintiff had established
his claim of intentional infliction of emotional distress and included no damages in its
award based on its finding of liability for sexual harassment.
        {¶ 74} This conclusion is particularly confusing in view of the majority’s
statement that “[g]iven that appellees [defendants] failed to request interrogatories that
might have explained the verdicts, we must presume that the awards were based on
both claims.” Consistency would require us to presume that in the absence of such
interrogatories, the total amount of damages awarded by the jury, particularly punitive
damages, was similarly based on findings of liability for both sexual harassment and
intentional infliction of emotional distress.
        {¶ 75} The majority’s conclusion that we should, in effect, assume that the
jury awarded damages based upon plaintiff’s separate claim for damages arising
from alleged intentional infliction of emotional distress is contradicted by the
record. The trial was overwhelmingly focused on Hampel’s claim of sexual
harassment. Prejudice resulting from the giving of an unwarranted instruction on
that claim is patent. Throughout the trial Hampel argued the sexual overtones of
the case. In closing argument Hampel’s counsel stated, “This is a case about sexual
harassment. * * * It was sexual. It was about sex. It was based on sex.”
        {¶ 76} In summation to the jury, Hampel’s counsel effectively merged the two
claims of sexual harassment and intentional infliction of emotional distress (“We also
know that many victims of sexual harassment suffer serious emotional distress,” and
“most people who would be harassed to this degree would be distressed”). Similarly,




                                            27
                              SUPREME COURT OF OHIO




twenty-three pages of the jury charge are devoted to the statutory claims for sexual
harassment and employer retaliation, while only three go to the claim for intentional
infliction of emotional distress. Further, the interrogatories, as quoted in the footnote
to the majority opinion, focus on the elements of a claim of sexual harassment more
than on the elements of intentional infliction of emotional distress.
        {¶ 77} The court of appeals is correct in observing that “the jury returned a
combined verdict, awarding compensatory damages on both the sexual harassment
and intentional infliction of emotional distress claims. The punitive damages verdict
did not explain whether the punitive damages award was based on the sexual
harassment claim, the emotional distress claim, or both. Accordingly, the court cannot
tell how much the jury would have awarded appellee solely for intentional infliction
of emotional distress.”
        {¶ 78} As the court of appeals observed, this court has acknowledged that the
two-issue rule “ ‘has not met with universal favor,’ ” and that we have indicated a
reluctance to “ ‘further extend the operation of the rule.’ ” Pulley v. Malek (1986), 

25 Ohio St.3d 95, 97

, 25 OBR 145, 147, 

495 N.E.2d 402, 404

, quoting H.E. Culbertson
Co. v. Warden (1931), 

123 Ohio St. 297, 303

, 

175 N.E. 205, 207

. Ohio precedent has
established that the two-issue rule is grounded in the proposition that an appellant must
demonstrate more than harmless error and show prejudice in order to justify reversal
of a verdict. See 

Pulley, supra;

 Wagner v. Roche Laboratories (1999), 

85 Ohio St.3d 457, 460

, 

709 N.E.2d 162, 164

 (the two-issue rule “is in essence a rule concerned with
prejudice”). Accordingly, the two-issue rule does not apply where the trial court
instructs on a defense on which it should not have given an instruction. Kehrer v.
McKittrick (1964), 

176 Ohio St. 192

, 196, 

27 O.O.2d 82

, 84, 

198 N.E.2d 669

, 672;
Ricks v. Jackson (1959), 

169 Ohio St. 254

, 

8 O.O.2d 255

, 

159 N.E.2d 225

, paragraph
four of the syllabus.
        {¶ 79} Again, the court of appeals correctly stated the law that should be
followed by this court when it stated on reconsideration that the “rationale applied by




                                           28
                                January Term, 2000




the court in Kehrer and Ricks applies with equal force where the jury returns a general
verdict on two or more claims, one of which should not have been submitted to it.
Because the jury verdict could well have been based, in whole or in part, on the claim
which was erroneously submitted, the entire verdict is affected by the error, and the
two issue rule does not apply. * * *
       {¶ 80} “This case is even clearer. The verdict forms disclose that the jury
found for plaintiff on both claims. Because one claim was submitted to the jury in
error, and the damages awarded on each claim cannot be differentiated, a new trial
on the other claim should be ordered.” (Emphasis added in part.)
       {¶ 81} The court of appeals followed well-established law announced by
this court and followed for many years by courts of appeals and trial courts. Neither
party has cited a reason to change the established law. I would affirm the judgment
of the court of appeals and remand the cause for a new trial on both liability and
damages as to the claimed tort of intentional infliction of emotional distress.
However, even assuming, as does the majority, that the two-issue rule applies in
this case, the rule should be deemed applicable to preserve the jury’s finding only
as to the defendants’ liability for the tort of intentional infliction of emotional
distress. The two-issue rule should not be used to affirm both liability and damages.
       LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                               __________________
       COOK, J., dissenting.
       {¶ 82} I respectfully dissent, because the majority misapplies the two-issue
rule. Assuming “that the sexual harassment claim should not have been submitted
to the jury,” the fact that it was submitted along with the claim of intentional
infliction of emotional distress requires us to assume that the jury based its award
on both claims. It is for that very reason that we may not assume, as the majority




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does, that the jury would have made the same award without the claim for sexual
harassment.
        {¶ 83} In my dissent in Wagner v. Roche Laboratories (1999), 

85 Ohio St.3d 457, 463

, 

709 N.E.2d 162, 167

 (Cook, J., dissenting), I wrote:
        “Under Ricks [v. Jackson (1959), 

169 Ohio St. 254

, 

8 O.O.2d 255

, 

159 N.E.2d 225

], the two-issue rule ‘does not apply where there is a charge on an issue
upon which there should have been no charge.’ 

Id.

 at paragraph four of the syllabus.
The majority attempts to distinguish this case from Ricks, however, by concluding
that greater prejudice resulted from the improper charge in that case. The quantum
of prejudice, however, is not the barometer for application of the Ricks analysis.”
When an instruction is given with no evidence to support it, prejudice is generally
presumed. Id. at 461, 

709 N.E.2d at 165

.
        {¶ 84} The jury here awarded undifferentiated damages to Hampel on both
the sexual harassment and the intentional-infliction-of-emotional-distress claims.
Under Ricks, we may not use the two-issue rule to presume a lack of prejudice.
Because I believe that the court of appeals correctly remanded this action for a new
trial, I respectfully dissent.
                                  __________________




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