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Travis Pruitt & Associates12/1/2005
an employer from ever being held liable for ratifying an employee's acts of sexual misconduct against another employee, no matter how inappropriately the employer responds to the victim's accusations of misconduct.
Whether an act was committed within the scope of employment should be a separate, albeit related, inquiry from whether an employee ratified an act after its commission. "Generally, an employer may be held responsible for the tortious act of an employee where the act was authorized by the employer prior to its commission, ratified by the employer after its commission, or committed within the scope of the employment." Hobbs v. Principal Financial Group, 230 Ga. App. 410, 411 (497 SE2d 243) (1998) (citations and punctuation omitted; emphasis supplied); Modern Woodmen of America v. Crumpton, 226 Ga. App. 567, 568 (487 SE2d 47) (1997); Sexton Bros. Tire Co. v. Southern Burglar Alarm Co., 153 Ga. App. 413, 414 (265 SE2d 335) (1980); see also Stewart v. Storch, ___ Ga. App. ___ (Case No. A05A0267, decided July 8, 2005) (determination of whether landlord ratified acts of sexual harassment by its property manager analyzed separately from whether acts were committed within the scope of property manager's agency). If the ratification issue could be resolved solely by determining whether the employee was acting within the scope of his employment, there would be no need for the disjunctive "or" included in the general rule.
An employer's ongoing tolerance of tortious conduct, such as sexual harassment, logically amounts to ratification of that conduct. I depart from the majority because I believe that the employer who ratifies acts of sexual harassment should not be shielded from liability by the fact that the sexual harassment occurred outside the scope of the employment or the fact that the employer did not specifically sanction the acts of harassment. See Wiley, supra, and Newsome, supra; see also Machen v. Childersburg Bancorporation, 761 So2d 981, 984-986 (Ala. 1999) (employer ratifies acts of sexual harassment if it expressly adopts misconduct or implicitly approves it); Murillo v. Rite Stuff Foods, 77 Cal. Rptr. 2d 12, 24 (1998) (principal is liable when it ratifies an originally unauthorized tort); Delaney v. Skyline Lodge, 642 NE2d 395, 402 (Ohio Ct. App 1994) (employer potentially liable for punitive damages for ratifying acts of sexual harassment); Wirig v. Kinney Shoe Corp., 448 NW2d 526, 534 (Minn. Ct. App. 1989), rev'd in part on other grounds, 461 NW2d 374 (Minn. 1990) (employer may ratify or approve acts of employee by failing to discharge or reprimand agent for sexual harassment); Brown v. Burlington Indus., 378 SE2d 232, 236 (N.C. Ct. App. 1989) (jury may find ratification of sexual misconduct from any course of conduct by employer which tends to show intention to ratify unauthorized acts; course of conduct may involve omission to act).
I am authorized to state that Presiding Judge Smith, Judge Barnes, Judge Miller and Judge Adams concur in this opinion.
Bernes, Judge, concurring specially.
I concur in the judgment but I write separately because I do not believe we need to address the legal viability of a ratification claim in context of this case. As Judge Phipps's concurrence makes clear, even if a cause of action based on ratification exists under Georgia law, the facts in this case do not establish such a claim. Thus, the overruling of Wiley v. Ga. Power Co., 134 Ga. App. 187 (213 SE2d 550) (1975), overruled on other grounds, Ga. Power Co. v. Busbin, 242 Ga. 612, 615 (250 SE2d 442) (1978); Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670 (347 SE2d 619) (1986); Trimble v. Circuit City Stores, 220 Ga. App. 498 (469 SE2d 776) (1996); and Mear
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