DEBRA F. AMMERMAN, PHYLLIS W. GUTHRIE, and LINDA W. SIMONS V. THE BOARD OF EDUCATION OF NICHOLAS COUNTY, and its members in their LOUISE ZACHARY, JOHN CLEAVER, JR., JAMES DALE, DAVID SMOOT, and SAMUEL VICE
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RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1996-SC-1061-DG
DEBRA F. AMMERMAN, PHYLLIS W.
GUTHRIE, and LINDA W. SIMONS
V.
APPELLANTS
ON REVIEW FROM THE COURT OF APPEALS
NO. 95CA-1979
NICHOLAS CIRCUIT COURT NO. 94-Cl-025
THE BOARD OF EDUCATION OF NICHOLAS
COUNTY, and its members in their
official capacity only, to-wit:
LOUISE ZACHARY, JOHN CLEAVER, JR.,
JAMES DALE, DAVID SMOOT, and
SAMUEL VICE
APPELLEES
OPINION OF THE COURT
AFFIRMING
Appellants, current or former teachers at the Nicholas County Elementary
School, brought this sexual harassment case against Appellees, the Board of Education
of Nicholas County and members of the Board of Education in their official capacities.
Appellants did not bring any actions against the alleged sexual harasser or against
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individuals who may have had a duty to directly supervise his conduct. Appellants
sought damages based upon the conduct of Harry Spickler, a co-worker and teacher at
the Nicholas County Elementary School from 1977 until 1993, in a variety of claims
sounding in contract, tort, and statutory violation, including violation of KRS 344, the
Kentucky Civil Rights Act.
From the evidence it appears that Harry Spickler habitually accosted his
female colleagues in a sexually overt manner. It is unnecessary to recount the details
of Spickler’s conduct. It is sufficient to say that his behavior was lewd and highly
inappropriate in the workplace. Through the years numerous complaints were made
about Spickler to school supervisory personnel. The response to the complaints was
wholly inadequate and included patronizing of the complainants, indications of
amusement, indifference, and suggestions that Spickler merely be avoided. Finally,
however, Spickler was fired in May of 1993, soon after the first formal written complaint
was filed against him. At a hearing before the Inquiry Tribunal of the Kentucky State
Board of Education, fifteen teachers came forward to verify the offensive nature of
Spickler’s conduct.
The trial court dismissed Appellants’ claims, finding that Appellants had
failed to state a claim for relief for breach of contract; that the tort claims were not
actionable and were otherwise time-barred; that the claims alleging violations of KRS
161.190 and 161.164 were not actionable; and that the civil rights claims were barred
by the five-year statute of limitations in KRS 413.120(6).
In regard to the dismissal of
the civil rights claims, the trial court noted that the last alleged incident of harassment
occurred 1993, to Appellant Simons, but was not reported. Thus, the trial court found,
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the claims became time-barred in January 1993 as the last reported incident occurred
prior to January 1988.
The Court of Appeals affirmed, holding that although the claims were
couched in terms of breach of contract, with a fifteen years statute of limitations, the
claims in fact involved sexual harassment, with only a five year statute of limitations.
The civil rights claims, the Court of Appeals held, were thus time-barred because the
January 1993 incident involving Appellant Simons was the only incident within the
limitations period and that a single, isolated comment is legally insufficient to constitute
sexual harassment.’ In so holding, the Court of Appeals noted that it did not condone
Spickler’s conduct or the school administrators’ manner of handling complaints, but that
it was obligated to observe the required limitations periods.
Among the defenses now asserted against Appellants and the defense
we believe to be dispositive of all Appellants’ claims, except those based on KRS 344,
is sovereign immunity. Appellants, however, contend that the doctrine of sovereign
immunity is inapplicable here because they were required to enter into an employment
contract* which imposed upon the Board a duty to protect them from the mistreatment
to which they were subjected. While acknowledging that sovereign immunity is
applicable to contract claims as well as to tort claims, Appellants argue, in effect, that a
contract right to be free from sexual harassment exists by virtue of statutory mandate3
’ Galloway v. General Motors Service Parts Operations, 78 F.3d 1164,
1167 (7th Cir. 1996).
* KRS 161.730.
3 KRS 160.290.
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and that it must be accompanied by a remedy for its breach. Accordingly, they reason
that our sovereign immunity jurisprudence cannot leave them without a damages
remedy.
Appellees respond that the doctrine of sovereign immunity applies to
boards of education and board members acting in their official capacities; that even if
Appellants’ claims may be characterized as contract rather than tort claims, sovereign
immunity nevertheless applies; and that without an express waiver of sovereign
immunity, the claims asserted are barred by KY. CONST. § 231. We agree.
While the defense of sovereign immunity usually arises from tort claims,
University of Louisville v. Martin4 holds unmistakably that sovereign immunity applies as
well to contract claims: “The doctrine extends to both actions in tort and in contract.”
This proposition was stated in Folev Construction Co. v. Ward,5 as follows:
The review of the cases on sovereign immunity forces the
conclusion that such cases as the Watkins and Michael
cases and the cases cited therein, in so far as they have
permitted the state to be sued on a contract or for damages
without express legislative consent, are unsound. . . . To
the extent that the cases mentioned are inconsistent
herewith, they are overruled.’
4 Ky. App., 574 S.W.2d 676, 677 (1978).
5 Ky., 375 S.W.2d 392 (1964).
61d. at 396.
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On the ultimate question of school board sovereign immunity, Clevinaer v. Board of
Education’ is controlling. In an extensive review of the doctrine of sovereign immunity
as it applies to county boards of education, this Court held that:
There has never been any question about the status of a
local school board as an agency of state government, but, if
there were, such is now beyond the realm of argument
because of our decision in Rose v. The Council for Better
Education. Inc., Ky., 790 S.W.2d 186 (Rendered, as
Modified, September 28, 1989). Rose recognizes public
schools are a responsibility of the state, and local school
boards exist simply as agencies of state government. . . .
Thus local school districts fall within the express language of
the section of our Kentucky Constitution, $j 231, which
provides immunity to suits “brought against the
Commonwealth.” Even if sovereign immunity were
interpreted as limited to units of government where recovery
“would or could constitute a claim upon the state treasury,”
as proposed in the dissenting opinions in Cullinan, supra,
and Louisville Metro. Sewer Dist. v. Simpson, Ky., 730
S.W.2d 939 (1987), cert. denied 484 U.S. 964 (1987) local
school districts would retain immunity.’
Thus, all of Appellants’ claims, except the civil rights claims, are barred by the doctrine
of sovereign immunity.
With regard to Appellants’ allegations of violations of the Kentucky Civil
Rights Act9 the core claims in this lawsuit, this Court recently held that the doctrine of
sovereign immunity does not prevent suit against the Commonwealth or its agencies
’ Ky., 789 S.W.2d 5 (1990).
8Id.at IO-II.
g KRS 344.010 et seq.
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based upon this Act.” Under the Kentucky Civil Rights Act, it is unlawful for an
employer, on the basis of sex, to “discriminate against an individual with respect to
compensation, terms, conditions, or privileges of employment . . . [or] to limit,
segregate, or classify employees in any way which would . . . tend to deprive an
individual of employment opportunities or otherwise adversely affect status as an
employee.“”
The Kentucky Act is similar to Title VII of the 1964 federal Civil Rights
Act’* and should be interpreted consistently with federal law.13
In 1986, the United States Supreme Court decided the watershed case of
Meritor Savina Bank v. Vinson,‘4 which held that a sexual harassment claim can be
brought based upon a hostile or abusive work environment. For sexual harassment to
be actionable under the Meritor standard, it must be sufficiently severe or pervasive so
as to alter the conditions of the plaintiffs employment and create an abusive working
environment.15
In other words, hostile environment discrimination exists “when the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and
lo Department of Corrections v. Furr, 1999-SC-159-DG and 1999-SC-332DG (2000).
” KRS 344.040.
I2 42 U.S.C. § 2000e-2(a)(l).
I3 Mevers v. Chapman Printing, Ky., 840 S.W.2d 814, 821 (1992).
I4477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed. 49 (1986).
l5 Meritor, 477 U.S. at 67, 106 S.Ct. at 2405, 91 L.Ed. at 60; Harris v.
Forklift Svstems, 510 U.S. 17, 126 L.Ed. 295, 114 S.Ct. 367 (1993); Faraaher v. City of
Boca Raton, 524 U.S. 775, 118 S.Ct 2275, 141 L.Ed.2d 662, 675 (1998); Meyers, 840
S.W.2d at 821.
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create an abusive working environment.“16
Moreover, the “incidents must be more than
episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.“” As stated by the United States Supreme Court in Harris v. Forklift
Systems, the harassment must also be both objectively and subjectively offensive as
determined by “looking at all the circumstances.“18
These circumstances 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.“‘g
Civil rights claims are governed by the five-year statute of limitations
provided in KRS 413.120(2). In a sexual harassment lawsuit, the limitations period
begins on the date the act of harassment occurs.2o Yet if the discriminatory act
constitutes a “continuing violation,” an equitable doctrine often used in hostile
environment claims, then the limitations period begins to run anew with each
succeeding discriminatory act.*’ Generally, “those violations preceding the filing of the
“Williams v. General Motors Corn, 187 F.3d 553, 560 (6th Cir.
1999)(citino Harris, 510 U.S. at 21 (citations and quotation marks omitted)).
” Id. at 577.
I8510 U.S. 17, 23, 126 L.Ed. at 302, 114 S.Ct. 367; Faraaher, 141 L.Ed. at
676; Oncale v. Sundowner Offshore Services. Inc., 523 U.S. 75, 118 S.Ct. 998, 140
L.Ed. 201, 208 (1998)(quoting Harris).
I9 Harris, 510 U.S. at 23, 114 S.Ct. at 371.
*’ Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989).
*‘Leonard v. Corrections Cabinet, Ky. App., 828 S.W.2d 668, 670
(1992)(citing Perez v. Laredo Junior College, 706 F.2d 731, 733 (5th Cir. 1983)).
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complaint by the full limitations period are foreclosed,“** yet the continuing violation
doctrine may allow a plaintiff to bootstrap incidents that occurred outside the statute of
limitations onto the sexual harassment claim.
In determining whether to apply the continuing violation doctrine, the
United States court of Appeals for the Fifth Circuit has stated,
The inquiry, of necessity, turns on the facts and context of
each particular case. Relevant to the determination are the
following three factors, which we discuss, but by no means
consider to be exhaustive. The first is subject matter. Do
the alleged acts involve the same type of discrimination,
tending to connect them in a continuing violation? The
second is frequency. Are the alleged acts recurring (e.g. a
biweekly paycheck) or more in the nature of an isolated work
assignment or employment decision? The third factor,
perhaps of most importance, is degree of permanence.
Does the act have the degree of permanence which should
trigger an employee’s awareness and duty to assert his or
her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act
is to be expected without being dependent on a continuing
intent to discriminate?23
Although all these factors play into the continuing violation calculus, we believe
frequency to be especially significant in this case, as we shall explain below.
These Appellants’ complaint was filed on March 28, 1994. Appellant
Ammerman resigned in 1988, making her claim time-barred no later than 1993.
Appellant Guthrie alleged that she experienced incidents in 1980 and 1985 or 1986.
Thus her claim became time-barred no later than 1991. Only Appellant Simons alleges
** Id. (quoting Perez, 706 F.2d at 733-734).
23Waltman, 875 F.2d at 475 (quoting Berrv v. Board of Supervisors of
,
Louisiana State University, 715 F.2d 971 (5th Cir. 1983)).
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to have been accosted inappropriately by Spickler within the limitations period -- once,
in 1993. She also claims that she experienced another episode of harassment by
Spickler in 1983, a decade earlier and well outside the limitations period.
The most recent incident alleged by Simons, a brief, off color comment,
cannot constitute actionable sexual harassment as a matter of law because this single,
isolated comment does not satisfy the severe and pervasive standard and cannot
“reasonably be thought to constitute sexual harassment.“24
As stated recently by the
United States Supreme Court, “offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in ‘the terms and
conditions of employment.“‘25
We are unable to find any authority holding that a single
incident can support a claim for “hostile environment” sexual harassment. Moreover,
we agree with the Court of Appeals that the two incidents involving Simons cannot be
linked together to form a continuing course of conduct because the incidents were
separated by a decade. Although, in considering the frequency criterion of the
continuing violation doctrine, courts should not perform a “mechanical calculation,“26
time span in this case is extreme. Appellants cite no authority supporting the
connection of two incidents so far removed from one another in time.
24Gallowav
at 1167.
25Faraqher,
141 L.Ed. at 676.
26Waltman,
875 F.2d at 476 (5th cir. 1989).
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the
Our reasoning is supported by Gallowav v. General Motors Service Parts
0oerationq2’ in which the United States Court of Appeals for the Seventh Circuit
provided an astute analysis of the vexatious issue of “when conduct occurring outside
the statue of limitations may, by virtue of its link with recent conduct, be made a basis
for a legal claim.“28
In doing so, it noted that, “[alcts of sexual harassment so discrete in
time or circumstances that they do not reinforce each other cannot reasonably be linked
together into a single chain, a single course of conduct, to defeat the statute of
limitations.“2g
The Seventh Circuit also stated,
The most difficult case arises when a lo’ng-continued series
of harassing acts definitely are a series, a pattern, and not
merely a set of discrete events, yet it was evident long
before the plaintiff finally sued that she was the victim of
actionable harassment. It seems to us that in such a case,
while she can still sue provided that the last act of
harassment occurred within the statute of limitations, she
cannot reach back and base her suit also on conduct that
occurred outside the statute of limitations; for she has no
excuse for waiting that long.30
In finally resolving the issue, the Seventh Circuit concluded that under the continuing
violation doctrine,
[T]he plaintiff may not base her (in some cases his) suit on
conduct that occurred outside the statute of limitations
unless it would have been unreasonable to expect the
*‘78 F.3d 1164.
28 Id. at 1165.
2glcJ. at 1166 (citing Koelsch v. Beltone Electronic Corp., 46 F.3d 705, 707
(7th Cir. 1995).
301d. at 1167 (citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446
(7th Cir. 1994); Selan v. Kiley, 969 F.2d 560, 565-66 (7th Cir. 1992)).
-lO-
plaintiff to sue before the statute ran on that conduct, as in a
case in which the conduct could constitute, or be
recognized, as actionable harassment only in the light of
events that occurred later, within the period of the statute of
limitations.“31
We believe that this approach is the most reasonable and practical.
Applying this principle to the instant case, it is clear from the facts that
Appellant Simons was the subject of two isolated episodes of alleged harassment.
Due
to the significant expanse of time separating these episodes, they cannot be joined
together to form the basis for a legal claim. What remains, therefore, is a single offcolor comment made within the limitations period. This single incident is legally
insufficient to constitute actionable sexual harassment.
Although we do not condone the conduct complained of herein, either by
Spickler or school officials, it is imperative that plaintiffs’ claims be filed promptly and
that limitations periods be observed, “thereby enhancing the likelihood of accurate
determinations and removing debilitating uncertainty about legal liabilities.32
For the foregoing reasons, we affirm the courts below.
Lambert. C.J., and Cooper, Keller, and Johnstone, JJ., concur. Cooper,
J., files a separate concurring opinion in which Lambert,
C.J., and Keller, J., join.
Wintersheimer, J., files a separate dissenting opinion in which Graves and Stumbo, JJ.,
join.
32Galloway at 1165.
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FOR APPELLANTS:
T. Bruce Simpson, Jr.
ANGGELIS, GORDON, SIMPSON & ROBERTS
139 Market Street
Lexington, KY 40507
FOR APPELLEES:
Dawn Curran Letcher
RICHARDSON, SMITH & HUGHES
P. 0. Box 224
Carlisle, KY 40311
Robert L. Chenoweth
J. Gary Bale
CHENOWETH LAW OFFICE
121 Bridge Street
Frankfort, KY 40601
FOR AMICUS CURIAE,
KENTUCKY EDUCATION ASSOCIATION:
Ron L. Walker, Jr.
Jane V. Fitzpatrick
BROOKS & FITZPATRICK
183 North Upper Street
Lexington, KY 40507
FOR AMICUS CURIAE,
KENTUCKY ASSOCIATION OF COUNTIES:
Brent Caldwell
McBRAYER, MCGINNIS, LESLIE & KIRKLAND
300 State National Bank Building
P. 0. Box 1100
Frankfort, KY 40602
Richard M. Sullivan
Edward F. Busch
CONLIFFE, SANDMANN &SULLIVAN
2000 Waterfront Plaza
325 West Main Street
Louisville, KY 40202
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RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1996-SC-1061
-DG
DEBRA F. AMMERMAN;
PHYLLIS W. GUTHRIE; and
LINDA W. SIMONS
V.
APPELLANTS
ON REVIEW FROM THE COURT OF APPEALS
NO. 95CA-1979
NICHOLAS CIRCUIT COURT NO. 94-Cl-025
THE BOARD OF EDUCATION OF NICHOLAS
COUNTY, and its members in their
official capacity only, to-wit:
LOUISE ZACHARY, JOHN CLEAVER, JR.,
JAMES DALE, DAVID SMOOT, and
SAMUEL VICE
APPELLEES
CONCURRING OPINION BY JUSTICE COOPER
I concur in the majority opinion because I agree that the causes of action in this
case were barred by the statute of limitations. However, I also believe, as expressed in
my dissenting opinion in Department of Corrections v. Furr, 23 S.W.3d 615 (2000) that
these causes of action are precluded by the principle of sovereign immunity.
Lambert, C.J., and Keller, J., join this concurring opinion.
RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1996-SC-1061
-DG
DEBRA F. AMMERMAN, PHYLLIS W.
GUTHRIE, and LINDA W. SIMONS
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
NO. 9%CA-1979
NICHOLAS CIRCUIT COURT NO. 94-Cl-025
THE BOARD OF EDUCATION OF NICHOLAS
COUNTY, and its members in their official
capacity only, to-wit: LOUISE ZACHARY,
JOHN CLEAVER, JR., JAMES DALE,
DAVID SMOOT AND SAMUEL VICE
APPELLEES
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because the statute of
limitations does not bar the civil rights claims presented when there is a strong case of
continuing sexual harassment as there is here.
The General Assembly of Kentucky has authorized the Commonwealth to be
sued for a violation of the Kentucky Civil Rights Act codified in KRS 344 et seq. My
reading of the record in this case indicates that the Board of Education has candidly
conceded that Chapter 344 amounts to a waiver of sovereign immunity, both in its
original brief and its response to the petition for rehearing. This Court has recently
decided in Department of Corrections v. Dorsey Furr, Ky., 23 S.W.3d 615 (2000) that
the Commonwealth of Kentucky, as an employer under the Kentucky Civil Rights Act,
does not enjoy the privilege of sovereign immunity. The majority decision does briefly
acknowledge the application of both the federal and state civil rights acts. Cf. Kerns v.
Bucklew 357 S.E.2d 750 (1987) which provides a detailed analysis of state sovereign
immunity and the supremacy of the Federal Civil Rights Act. The Federal Act is
reflected in KRS 344.010.
The failure of the majority opinion to accept the devastating consequences of a
hostile work environment is serious error. It is beyond question that the behavior of the
dismissed teacher was demeaning, crude and generally intolerable and unacceptable.
It is further beyond belief that this created a totally hostile work environment. A civil
rights-violation can be of a continuing nature over a considerable span of time. Leonard
v. Corrections Cabinet, Ky.App., 828 S.W.2d 668 (1992). KRS 413.120(2) provides for
a five-year statute of limitations, with the period of limitations beginning to run on the
date on which the act occurred. If a plaintiff can demonstrate that the violation is
continuing, then the time limitation begins to run with each new violation. Here, the fiveyear period began to run on May 3, 1993, when Spickler was terminated by the school
system.
Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 510 U.S. 17, 126 L.Ed.2d 295
(1993), is the leading case on a hostile work environment following the decision of the
U.S. Supreme Court in Meritor Savinas Bank v. Vinson, 106 SCt. 2399,477 U.S. 57,91
L.Ed.2d
49 (1986).
Here, there were numerous complaints of incidents about the inappropriate
conduct which had interfered with the work performance of the teachers who were
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harassed. The work environment was pervasively severe and hostile so as to constitute
a continuing sexually hazardous work environment. Such questions are matters of fact
and not questions of law and are not suitable for summary judgment. Approximately 17
teachers were subjected to the abuse between 1983 and 1993. Whether all of these
acts were severe and continuing enough to constitute a hostile work environment is
certainly a question for a jury. Cf. Mevers v. Chapman Printina Co., Ky., 840 S.W.2d
814 (1992). The hostile work environment was established not only by the behavior of
Spickler and his actions against the individuals but also by his acts against other female
teachers which were acknowledged through the years. As originally noted by this Court
in its initial opinion “We have no doubt of the appellants’ contention that a hostile work
environment existed. . . .‘I There was testimony before the Inquiry Board of the
Kentucky Board of Education that “Spickler’s conduct was common knowledge among
the teachers and that all teachers tried to avoid him.”
Here, the work environment is a small elementary school and it is reasonable to
conclude that the conduct of the accused had an impact on almost every female teacher
in the system. The instances of abuse were ongoing and chronic. Generally, a
claimant must show a series of related acts “one or more of which falls within the
limitations period or the maintenance of a discriminatory system both before and during
the period. Gutowsky v. County of Placer, 108 F.3d 256 (9th Cir. 1997).
It is well settled that unlawful sexual harassment can only be determined by
examining “all the relevant circumstances, no single factor being required.” Harris,
supra: Meyers supra. Here, the underlying case was dismissed on summary judgment,
consequently, no jury has ever been able to determine the facts. The misbehavior
recited in this case is clearly a continuing violation of the civil rights of the individuals
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involved and can be the basis of an appropriate civil rights complaint. The clear
purpose of the Kentucky Civil Rights Act was to provide relief for peaceful people thus
offended.
KRS 344.450 provides as follows:
Any person injured by any act in violation of the provisions of this
chapter shall have a civil cause of action in Circuit Court to enjoin
further violations, and to recover the actual damages sustained,
together with the costs of the lawsuit. The court’s order or judgment
shall include a reasonable fee for the plaintiffs attorney of record and
any other remedies contained in this chapter.
It is clear that the provisions of KRS 344.450 specifically permit a suit for compensatory
damage as well as other relief covered by the Act.
KRS 344.010(l) defines the term “person” for purposes of any cause of action
under the statutes as follows:
“Person” includes one or more individuals, labor organizations,
joint apprenticeship committees, partnerships, associations,
corporations, legal representative, mutual companies, joint stock
companies, trusts, unincorporated organizations, trustees, trustees
in bankruptcy, fiduciaries, receivers or other legal or commercial
entities; the state, any of its political or civil subdivisions or
agencies.
KRS 344.030(2) defines employer as a person who has eight or more employees
within the state. Clearly, the state and its political subdivisions constitute a person and
employer. This section of the statute was amended in 1972 specifically to exclude the
United States government and a qualified private membership club exempt from federal
taxation in disability discrimination cases only. In 1972, the General Assembly had the
opportunity to exclude specifically the Commonwealth and did not choose to do so.
KRS 344.020 states the general purposes of the Kentucky Civil Rights Act as
follows:
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To safeguard all individuals within the state from discrimination
because of familial status, race, color, religion, national origin, sex,
age 40 and over, or because of the person’s status as a qualified
individual with a disability as defined in KRS 344.010, and KRS
344.030; thereby to protect their interest in person dignity and
freedom from humiliation, to make available to the state their full
productive capacities, to secure the state against domestic strife
and unrest which would menace its democratic institutions, to
preserve the public safety, health and general welfare, and to
further the interests, rights, and privileges of individuals within the
state; . . . .
The record in this case supports a compelling case of continuing sexual
harassment that did not end until the harasser was terminated in May of 1993. I do not
believe the five-year statute of limitation bars the claim presented here. It is not
necessary for this Court to reexamine its holdings in Withers or Franklin Countv v.
Malone, Ky., 957 S.W.2d 195 (1997) in order to provide relief for the teachers in this
case.
I would reverse the decision of the Court of Appeals.
Graves and Stumbo, JJ., join in this dissent.
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