Section 49-z-501

Citation: Section 49-z-501
Parent Document: Bruner v. Yellowstone County, 272 Mont. 261 (1995)
Jurisdiction: Montana (state)
Effective Date: 1995-08-03
Original Source: https://www.courtlistener.com/opinion/883592/bruner-v-yellowstone-county/ ↗
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          The District               Court       in the case at hand,                       found     that        Bruner's
claim       for       negligent         retention           was founded               in     unrelenting                sexual
harassment                during     her employment              and that      the exclusive                 remedy for
this      type        of conduct           (sexual        harassment)            is    found         in     the Montana
Human Rights                Act.     I disagree.            Exclusivity            only       applies        if     the two
remedies          share indispensable                    elements.          Sexual harassment                    under the
HRA and negligent                    retention           do not      share       indispensable                   elements.
The HRA requires                   proof        of discrimination.                    The tort            of negligent
retention            does not.
          In Retherford               v. AT&T Communications                     of the Mountain                   States,
Inc.      (Utah 1992),               844 P.2d 949, the plaintiff                           alleged,         among other
claims,           that        AT&T negligently                    employed        several             employees             who
harassed              her.            The        court           analyzed        whether              Utah's             Anti-
Discriminatory                 Act     (UADA) provided               the     exclusive              remedy         for      her
claims.              The court        adopted        the     indispensable                 element         test     as the
analytical                model to determine               whether      a statutory                 cause of action
forecloses                a common law            remedy.            Retherford,              844      P.2d        at     963.
Applying          the test,           the court          first      identified              the injury            that      the
statute         was designed               to     address.           Retherford,              844         P.2d     at     965.
Second,         the        court     examined        the         elements     of       the plaintiff's                    tort
claims          to        determine        whether          any      element          of      the         claim         was      a
necessary            element         of the       statutory          cause of          action.             Retherford,
844      P.2d        at     965.      That       court      concluded         that          the     UADA addressed
employment                discrimination           against         members of              specified             protected
groups.           The court           found      that:
          [nloticeably  absent from the list  of the indispensable
          elements of the four claims  [one of which was negligent
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         employment]  is an injury   that is a target   of the UAUA:
         retaliation  for complaints   of sexual harassment.   While
         it is true that all four claims arise out of defendants'
         retaliatory  conduct, preemption depends on the nature of
         the injury,  not on the nature of the conduct allegedly
         responsible  for that harm.
Retherford,             844 P.2d at 967.
         I would apply           the two-part         test        from Retherford           to the instant
case.         First,      the    injuries          addressed        by the Montana           Human Rights
Act     (HRA) include           various       employment-related                 discriminatory             acts.
Second, the elements                of Bruner's           tort,     negligent        retention,       require
that    Bruner         prove    that      Yellowstone          County's       "negligence          in hiring,
supervising,            or retaining         its    employees         [Hoeferl       proximately           caused
her     harm."          See Retherford,             844 P.2d         at     967.      The HRA does not
address         negligent          retention          of       an    employee         who     harasses          or
discriminates            against       another      employee.          Rather,       the HRA focuses            on
the discriminatory               acts      of the employer            which directly              impact     upon
the injured            employee.          The HRA provides                in relevant       part     that:
         (1) It     is an unlawful     discriminatory      practice     for:
                 (a)    an employer to refuse employment to a person,
        to bar a person from employment,                  or to discriminate
        against a person in compensation or in a term, condition,
        or privilege           of employment because of race,                creed,
        religion,       color,    or national    origin    or because of age,
        physical       or mental disability,         marital    status,      or sex
        distinctionL.1
Section        49-2-303(l)         (a),    MCA.
         If   Bruner      were alleging            that     Yellowstone            County was harassing
or discriminating               against      her then she would have a claim                        under the
HRA and any common law harassment                          and discrimination             claims      against
Yellowstone            County would be preempted.                      Likewise,        a claim       against
the     County         based upon Hoefer's                harassing        conduct      would      merely       be
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