Denise Kohler, an employee of the City of Wapakoneta, Ohio Police Department, filed a lawsuit against David Harrison, formerly Wapakoneta’s Chief of Police. Kohler alleged that Harrison had used the Department’s computer system to display and distribute offensive and pornographic photographs and E-mails, and that he had also used hidden electronic devices owned by the Department to audio record female employees, including Kohler, while they were in the Police Department restroom.

The Ohio Government Risk Management Plan (The Plan) provided liability insurance coverage to Wapakoneta. When Kohler’s lawsuit was filed, The Plan filed a declaratory judgment lawsuit seeking a determination that it had no duty to defend or indemnify Harrison in the lawsuit.

The Ohio Supreme Court held that The Plan was obligated to defend Harrison, at least through the initial stages of the lawsuit.

The Court started with the notion that The Plan was obliged to provide a defense for any actions that were alleged to be in the “course and scope” of employment. The Court observed that “federal courts have held that where an employee is able to sexually harass another employee because of the authority or apparent authority vested in him by the employer, it may be said that the harasser’s actions took place within the scope of his employment. Whether an employee is acting within the scope of employment is a question of fact to be decided by a jury. The Plan would have us hold – as a matter of law – that acts of sexual harassment are always outside the scope of employment. The determination of whether conduct is within the scope of employment or outside the scope of employment necessarily turns on the fact-finder’s perception of whether the supervisor acted, or believed himself to have acted, at least in part, in his employer’s interest. We decline to hold that sexual harassment is conduct that is outside the scope of employment as a matter of law.”

Ohio Government Risk Management Plan v. Harrison, 2007 WL 2816616 (Ohio 2007).

This article appears in the November 2007 issue