Babcock & Wilcox Co. v. Ohio Civil Rights Commission , 31 Ohio St. 3d 222 ( 1987 )

Douglas, J.,

dissenting. William Wirth, Jr. was refused employment as an electrician by appellee, Babcock & Wilcox Company. Wirth, a recovering alcoholic of six weeks’ sobriety, sought assistance from appellant, the Ohio Civil Rights Commission. Wirth charged that appellee refused to hire him because of his handicap, alcoholism. After extensive administrative proceedings, appellant found that appellee had violated R.C. 4112.02(A) and appellant ordered that appellee hire Wirth and pay him back wages.

Appellee appealed the order of the commission. The trial court, pursuant to R.C. 4112.06, reviewed the record of the case. The trial court reversed and vacated the order of the appellant on the basis that its decision was not supported by reliable, probative and substantial record evidence. This judgment of the trial court was unanimously affirmed by the court of appeals. Today, this court reverses the judgments of both lower courts and in so doing, despite protestations to the contrary, sub silentio enters into the arena of private employment relations and tells employers in this state that they may not refuse to hire persons just because they are alcoholics and drug addicts. Given the previous positions of this court on the doctrine of employment-at-will in this state, today’s decision is not only difficult to understand, but it is also incomprehensible. Consider, as representative samples, the following excerpts from various cases, two of which were recently decided by this court.

In Fawcett v. G. C. Murphy & Co. (1976), 46 Ohio St. 2d 245, 75 O.O. 2d 291, 348 N.E. 2d 144, syllabus, this court held that “[violation of the provisions of R.C. 4101.17 by an employer does not give rise to a civil action for damages.” Therefore, even though an employer violated a statute, R.C. 4101.17, and discriminated on the basis of age against any applicant for a job opening, or discharged an employee in violation of the statute, without just cause, such person discriminated against did not, in Ohio, have the right to seek damages for the discrimination even if admittedly done in violation of the statute. It took action by the state legislature to rectify that portion of this court's holding in Fawcett.

Worse yet is the language found in Fawcett at 249, 75 O.O. 2d at 293-294, 348 N.E. 2d at 147: “The second common issue presented is appellants’ contention that the right of employers ‘to terminate employment at will for any cause, at any time whatever, is not absolute, but limited by principles which protect persons from gross or reckless disregard of their rights and interests, wilful, wanton or malicious acts or acts done intentionally, with insult, or in bad faith.’ ” (Emphasis added.)

Fawcett then states “[t]he holding in Anderson v. Minter (1972), 32 Ohio St. 2d 207, 291 N.E. 2d 457, refutes that contention. * * *” (Emphasis added.) Id. Thus, in Ohio, an employee, deemed at-will, may be discharged by an employer even if the discharge is in gross or reckless disregard of the employee’s rights and even if the discharge is wilful, wanton or malicious and is done intentionally and with insult or in bad faith. Is it possible to even imagine another field of law where such rules exist? Yet in the decision we announce today, this court tells Ohio employers, when Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St. 3d 279, 25 OBR 331, 496 N.E. 2d 478² is considered, that persons who suffer the handicap of alcoholism or drug addiction must be hired, all other things being equal.

Today, this court now proceeds to tell an Ohio employer that it may not refuse to hire one who is afflicted with alcoholism or drug addiction, on that basis, but the court does nothing about the law that permits the same employer to discharge such an employee, for any reason or no reason, the very next day after the mandated hiring takes place. Consider the recent 1985 case, Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, 19 OBR 261, 483 N.E. 2d 150, where, among other things, this court at 103, 19 OBR at 263, 483 N.E. 2d at 153, citing Fawcett as authority said that “* * * [t]his doctrine [employment-at-will] has been repeatedly followed by most jurisdictions, including Ohio, which has long recognized the right of employers to discharge employees at will.” (Citations omitted.) The Mers court then stated at 103, 19 OBR at 264, 483 N.E. 2d at 153, that abolishing the employment-at-will doctrine would “* * * place Ohio’s courts in the untenable position of having to second-guess the business judgments of employers. The need for certainty and continuity in the law requires us to stand by precedent and not disturb a settled point unless extraordinary circumstances require it.” It is hard for me to comprehend how the case now before us (just two years later) presents facts which are so extraordinary in circumstances that the second-guessing of the business judgments of employers is now deemed advisable.

Even more incongruous and irreconcilable with today’s decision is Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100, 23 OBR 260, 491 N.E. 2d 1114, where this court, just one year ago, held at paragraph one of the syllabus that “(pjublic policy does not require that there be an exception to the employment-at-will doctrine when an employee is discharged for reporting to his employer that it is conducting its business in violation of law” and at paragraph two of the syllabus that “[a]n at-will employee who is discharged for reporting to his employer that it is conducting its business in violation of law does not have a cause of action against the employer for wrongful discharge.” By those holdings, this court declined to permit an exception to the doctrine even on public policy grounds, a position now taken by an overwhelming number of states. The plain import of Phung is that an employee who knows that his employer is conducting its business in violation of law, should not tell even his employer about the violation, if the employee is employed in Ohio. To do so subjects the employee to discharge without recourse. The Phung court, at 102, 23 OBR at 261-262, 491 N.E. 2d at 1116, also said “ * * [employment contracts can be terminated at will for any cause, at any time whatsoever, even if done in gross or reckless disregard of any employee’s rights.’ ” (Citations omitted.) Now, in effect, we tell appellee herein that it must hire Wirth in spite of his alcoholism because he is handicapped but that he can be fired, under our past decisions, by appellee promptly thereafter on the basis that Wirth drives a green car — or for any cause.

Because I cannot square away this court’s numerous and recent pronouncements in the field of hiring and discharge of employees with today’s decision which mandates that certain specific persons be hired by employers in this state,, and further upon public policy grounds, I dissent.

2 It should be noted that Hazlett was a discharge case as opposed to the case now before us which is a hiring case.