Saucier Ex Rel. Mallory v. McDonald's Restaurants of Montana, Inc.

delivered the Opinion of the Court.

¶ 1 Mary Mallory (“Mallory”), acting as limited guardian for her niece Patricia A. Saucier (“Saucier”), filed this suit on Saucier’s behalf in the *31District Court of the Thirteenth Judicial District, Yellowstone County, asserting tort claims and discrimination claims against McDonald’s Corporation and McDonald’s Restaurants of Montana, Inc. (collectively “McDonald’s”) and Alex Keeton. The District Court granted summary judgment in favor of the defendants on all claims except the discrimination claims against Alex Keeton. Mallory appeals.

¶2 We consider the following issues:

¶3 (1) Did the District Court err in concluding that Saucier’s tort claims are barred as a matter of law?

¶4 (2) Did the District Court err in concluding that McDonald’s sufficiently established an affirmative defense to Saucier’s discrimination claims?

¶5 We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Saucier was born in Billings, Montana on September 9,1977. The record indicates that six months after her birth she became afflicted with spinal meningitis which significantly and permanently impaired her brain function. After her parents divorced in 1983, she lived at times with her mother in Montana, and at times with her father in Mississippi. While the record contains few details about her early childhood, it does indicate that Saucier received special education and speech therapy through the public school system. When Saucier reached the age of eleven, her mother contacted the Montana Department of Family Services, apparently seeking assistance in caring for Saucier. Subsequently, under conditions which are not made clear in the record, Saucier was placed in the Deaconess Psychiatric Center in Billings. She also spent time at the Rivendell Psychiatric Hospital and a foster home. Apart from her temporary placements with these institutions, Saucier lived primarily with her aunt, Mallory.

¶7 In December of 1989, shortly after Saucier had reached the age of twelve, the District Court of the Thirteenth Judicial District, Yellowstone County, found her to be “seriously mentally ill” and ordered her committed to Rivendell Psychiatric Center in Billings pursuant to § 53-21-127, MCA, where Dr. Ralph Yaney, a psychiatrist, conducted an assessment of her. In his written report, Dr. Yaney determined that Saucier suffered from “severe to moderate mental retardation.” He also determined that Saucier “is functioning at the age of 2 or 3 or 4 emotionally” and that she “seems to have no ability to understand right or wrong.” Thus, Dr. Yaney did not conduct any psychological testing, as he deemed Saucier to be functioning “at too *32low of a level to allow any psychological assessment.” Despite these conclusions, he stated that placement at the Rivendell Psychiatric Center was not appropriate for Saucier. Rather, Dr. Yaney concluded, she needed “either a trial in a psychiatric hospital for children and/or ultimately institutional care.” In this regard, he noted that Saucier’s parents refused to take her back into their care, and her aunt no longer felt that she could care for Saucier.

¶8 During the subsequent years, Saucier resided in several residential treatment homes in Montana, Wyoming, and Idaho. When she reached the age of eighteen, Saucier was placed at the Milk River Group Home in Glasgow, Montana. The records from her time at this institution state that she was assessed by staff members as being “at risk of emotional, physical, sexual and financial exploitation.” Additionally, under circumstances which are not made clear in the record, a case manager at the home prepared a “Certification of Disability” regarding Saucier and sent it to the Montana Department of Motor Vehicles. This document stated that, based on medical and psychological reports, Saucier was considered permanently disabled pursuant to § 39-30-103, MCA.

¶9 The record indicates that in 1998, when Saucier reached the age of twenty-one, she returned to Billings. Thereafter, she was able to live on her own in an apartment provided by the Billings Housing Authority, with monitoring and assistance provided by local YWCA officials apparently affiliated with a state sponsored social-services program. She received Social Security disability benefits and supplemented this income by periodically working part-time jobs, such as washing dishes at a restaurant and doing laundry at a hotel. While she was permitted to retain and spend the income she received from working, her disability benefits were directed to YWCA officials who ensured that those funds were used to pay her rent, utilities, and other bills. Additionally, the YWCA provided various activities in which Saucier participated, including the Special Olympics.

¶10 In August of 2001, local officials sent Saucier to Dr. Debra Sheppard, a neuropsychologist, for psychological evaluation apparently in connection with the Social Security disability benefits program. Dr. Sheppard rendered a report stating that Saucier was having difficulty maintaining employment and that she “has a ‘trainer’ who comes in to help her with household chores as she is not able to do these independently.” The case-worker who accompanied Saucier to this evaluation disclosed that “Saucier requires an abundance of repetition to establish comprehension.”

*33¶11 Dr. Sheppard’s report also states that “Saucier’s responses resulted in a Full Scale IQ of 57” which “places her overall intellectual skills in the Extremely Low range of intellectual functioning or below the first percentile when compared to a group of her same aged peers.” In further detail, Dr. Sheppard’s report states:

Ms. Saucier earned a Verbal IQ of 65, which is in the Extremely Low range. She performed within the mildly impaired range on tasks measuring her rote memory for numbers and practical judgment. Moderate impairment was observed on tasks assessing her vocabulary skills, ability to recognize abstract relationships, and general fund of information. Severe impairment was observed on a task requiring mental computational skills.

Ms. Saucier’s Performance IQ of 55 is in the Extremely Low range. She performed within the moderate impaired range on tasks tapping abilities and the separation of essential from unessential detail, visual-motor coordination, the recognition of spatial relationships and abstract reasoning. Severe impairment was observed on a task tapping abilities in temporal sequencing.

As a result of this assessment, Dr. Sheppard concluded that Saucier “will require significant assistance for the foreseeable future.”

¶12 In October of 2001, shortly after Dr. Sheppard rendered her assessment, Saucier, now twenty-four, applied for employment at the McDonald’s restaurant on Central Avenue in Billings. Two friends assisted her in filling out the application, and she was subsequently hired by the restaurant manager, Alex Keeton (“Keeton”), to work as a “lobby person.” Saucier worked approximately fifteen to twenty hours per week in this “auxiliary position,” as McDonald’s identified it, which entailed cleaning the dining area and restrooms, and hauling garbage to the dumpster. While she initially worked a lunch-time shift, Saucier was transferred to a shift later in the afternoon because high school students subjected her to teasing during the lunch hour.

¶13 Approximately four months after Saucier began her job at McDonald’s, she became involved in a sexual relationship with Keeton, who was married. Keeton’s conduct with Saucier, particularly in regard to his capacity as restaurant manager, and the alleged negligence of McDonald’s in connection therewith, are the underlying subjects of this litigation.

¶14 Keeton admits that he engaged in secret episodes of “hugging and holding” with Saucier at McDonald’s, in a stockroom located in the restaurant’s basement. According to Saucier, the physical contact in these incidents was such that Keeton achieved orgasm. Keeton also *34admits that he had sexual intercourse with Saucier on two occasions after the night shift ended, with the first of these occurring on Valentine’s Day in 2002. These incidents occurred when Keeton took Saucier to deposit the restaurant’s cash at a bank, and then drove her in “the company car” to the outskirts of Billings. The record suggests that Keeton may have changed Saucier’s work schedule to facilitate these encounters in the McDonald’s vehicle. Additionally, Keeton admits that he had sexual intercourse with Saucier at her apartment on one occasion. According to Saucier, this incident also occurred after they had made a bank deposit following an evening shift.

¶15 During the course of the relationship, Keeton admits, he told Saucier that he loved her “on many occasions.” Keeton also admits that he knew Saucier was mentally disabled. As Keeton put it, he knew that she was “unable to solve complex problems.” Further, Keeton admits that he told Saucier not to tell anyone about their sexual relationship, explaining to her that such disclosure “could hurt both of us.”

¶16 Although Saucier asserts that she “didn’t like” some of Keeton’s advances, and that she asked him to stop at times, she has stated that she was “in love” with him. She has also stated that she did not actually love him, and yet told him she did. In explaining why she made this statement to him, Saucier has stated: “Because I didn’t know what else to say. I don’t have a good comprehend or speak. I just do what people do.”

¶17 In addition to repeatedly telling Saucier that he loved her, Keeton admits he also told her that he might leave his wife and that, if that happened, he “would like to marry [Saucier].” Further, according to Saucier, Keeton told her that he could “have a lot of women” because he is a Mormon.

¶ 18 In late March or early April of2002, Keeton told Saucier that they could spend time together during a week in April when his wife was scheduled to be out of town. Specifically, Keeton admits he told Saucier that if she had the time off work, they would spend a “mini-honeymoon week” at his house. Consequently, Saucier submitted a written request to be excused from work for that entire week, and Keeton approved the request in his capacity as the restaurant manager. According to Saucier, Keeton directed her to submit this request.

¶19 On April 4, 2002, Keeton dropped his wife off at the airport and drove to Saucier’s apartment, where she then packed clothes and other items for a week-long stay at Keeton’s residence. Keeton then drove Saucier to his house and they engaged in sexual intercourse. Although *35he led Saucier to believe that they would spend the entire week together at his residence, Keeton drove Saucier back to her apartment shortly after their sexual encounter, and told her that they would not continue their relationship.

¶20 Thereafter, Saucier contacted her older sister, Sandra Sanderson (“Sanderson”), and reported that she “was having problems at McDonald’s” with “a guy named Alex [Keeton].” According to Sanderson, Saucier reported that “he had taken [her] off the [work] schedule, Alex did, and she was concerned, because she needed the money.” Ultimately, Saucier informed Sanderson about the sexual activity between her and Keeton.

¶21 Sanderson called McDonald’s and reported Keeton’s conduct. In response, McDonald’s sent Saucier a letter stating that she could return to the restaurant and work her regularly scheduled shifts. When two members of McDonald’s management first questioned Keeton about his conduct with Saucier, he denied that they had a sexual relationship. Shortly thereafter, however, Keeton admitted his sexual relationship with Saucier, and McDonald’s terminated his employment.

¶22 As noted above, Keeton repeatedly told Saucier he loved her, and also expressed a desire to marry her. The record suggests this had a significant impact on Saucier. As YWCA case-worker Terry Baptiste testified in deposition, Saucier is “desperate” for attention. Not surprisingly, Dr. Sheppard determined approximately five months after the relationship with Keeton had ended, that Saucier still “appears to be fixed on the belief that [Keeton] will honor promises made to her regarding the continuation of a more permanent relationship.”

¶23 Shortly after Keeton’s conduct was exposed, legal counsel was obtained for Saucier and her aunt, Mallory, was appointed as her limited guardian for the purpose of this litigation. Pursuant to the Montana Human Rights Act, § 49-2-303, MCA, Mallory filed a Complaint in June of2002 on Saucier’s behalf with the Human Rights Bureau of the Department of Labor and Industry. The Complaint, which was filed against Keeton and McDonald’s Corporation, alleged inter alia that: (1) Keeton discriminated against Saucier on the basis of her gender and also on the basis of her disability by subjecting her to a sexually hostile and offensive work environment; and (2) McDonald’s Corporation failed to take effective action to prevent Keeton’s discriminatory conduct.

¶24 In December of 2002, after conducting an investigation, the *36Human Rights Bureau issued its Investigative Report concluding that the relationship between Keeton and Saucier had been consensual. Thus, the Bureau concluded that the allegations of discrimination were not supported by a preponderance of the evidence. Accordingly, the Complaint was dismissed and the Bureau provided notice that Malloiy was entitled to pursue the discrimination claims in district court.

¶25 In August of2002, while the Human Rights Bureau was engaged in its investigation, Dr. Sheppard again conducted a psychological evaluation of Saucier. The results were consistent with the results of the assessment Dr. Sheppard had made one year earlier, before Saucier began working at McDonald’s. Again, the testing demonstrated that Saucier possesses “a Full Scale IQ of 57.” Additionally, Dr. Sheppard conducted an “adaptive behavior” assessment, which measures language skills, “daily living” skills, and socialization skills. The results of this assessment demonstrated that Saucier’s “level of adaptive functioning overall is equivalent with what would be expected of a child age 8 years, 7 months.” Ultimately, Dr. Sheppard concluded her report in a manner consistent with the previous year’s assessment, stating: “It is highly recommended that consideration be given toward appointing a guardian for Ms. Saucier. She clearly needs assistance in making decisions regarding her welfare.”

¶26 Shortly thereafter, in September of 2002, counsel for Saucier sought Dr. Sheppard’s opinion regarding Saucier’s capacity to appreciate the consequences of a sexual relationship, her capacity to welcome or reject sexual advances, and her capacity to enter into contracts. In response, Dr. Sheppard opined that while Saucier has the ability to seek out or reject sexual advances, she possesses an “extremely limited capacity’ to appreciate the consequences attendant to a sexual relationship. Dr. Sheppard also opined that Saucier was not capable of entering into contracts because of “her state of mild mental retardation and impaired practical/social judgment.”

¶27 In the spring of 2003, Mallory filed the instant action in the District Court, on Saucier’s behalf, against McDonald’s and Keeton, as well as other McDonald’s employees identified only as “John Does 1-3.” The Complaint alleged, inter alia, that: (1) Keeton “made sexual advances and engaged in offensive conduct of a sexual nature” toward Saucier; (2) Keeton, with the consent of McDonald’s, “required [Saucier] to work late hours with him, and even removed her from the weekly work schedule, so that she would be available for sexual relations and his sexual gratification”; (3) Keeton, with the consent of McDonald’s, required Saucier to work the closing shift and then used *37“the car provided by McDonald’s of Montana to make night deposits and, under the pretext of driving [Saucier] home, would then take [her] to remote areas of Billings in the McDonald’s company car and have sexual intercourse with her”; (4) Saucier “lacks the mental capacity to understand or appreciate the consequences of a sexual relationship” and she “was not able to consent to any of the sexual misconduct of Keeton”; (5) McDonald’s “entered into a special relationship of custody and control over [Saucier]” dining her employment with the restaurant; (6) McDonald’s failed to adequately train, supervise, and take proper precautions for the safety of its employees, thereby allowing Keeton to take advantage of Saucier, which he did in the course and scope of his employment with the restaurant; (7) the Defendants “discriminated against [Saucier] on the basis of her sex and disability by creating and subjecting [her] to a sexually hostile and offensive work environment”; (8) the Defendants acted with actual malice, as evidenced by a “deliberate, reckless, and intentional disregard for the high probability of injury” to Saucier; and (9) Saucier suffered damages as a result of the Defendants’ acts and omissions. Pursuant to these allegations, the Complaint asserted various tort claims, along with claims of gender discrimination and disability discrimination, against both Keeton and McDonald’s. Finally, the Complaint requested both compensatory and punitive damages.

¶28 During the course of the litigation, Dr. James English, a neuropsychologist, conducted a psychological evaluation of Saucier, at the request of McDonald’s. Among other things, his report states that during the testing Saucier “was overwhelmed with tasks that required her to repeat and recall any form of verbal material.” The report further states that Saucier’s “logical grammatical reasoning skills were generally consistent with the 11- to 12-year-old range.” Based on the various forms of testing, Dr. English determined: “Her capacity to reason is generally consistent with her IQ and in the range similar to the lower 5 or 6% of the adult population. That is, her reasoning abilities are not unlike those of an 11- or 12-year-old child.” Despite these findings, however, Dr. English concluded that Saucier has the capacity to consent to a sexual relationship, stating she “commands a basic understanding and knowledge base about sex” and “understands the physiological consequences of sexual intercourse to the extent that she utilizes birth control.”

¶29 Keeton and McDonald’s secured separate counsel and each moved independently for summary judgment on Saucier’s tort claims. In response, the District Court entered separate orders granting *38summary judgment in favor of both Keeton and McDonald’s, concluding that Saucier’s tort claims are barred by the Montana Human Rights Act.

¶30 Additionally, Keeton and McDonald’s each moved independently for summary judgment, on Saucier’s gender discrimination claim and her disability discrimination claim. The District Court then issued an order granting summary judgment on the merits in favor of McDonald’s, and another order denying Keeton’s motion. Subsequently, with the only remaining causes of action being the two discrimination claims against Keeton, he entered into a written agreement with Mallory whereby he stipulated to an entry of judgment in Saucier’s favor. Thus, the District Court entered judgment against Keeton for the amount he and Mallory agreed upon, which was $500,000.00.

¶31 Mallory now appeals the District Court’s orders granting summary judgment on Saucier’s tort claims in favor of McDonald’s and Keeton, as well as the order granting summary judgment on her discrimination claims against McDonald’s.

STANDARD OF REVIEW

¶32 We conduct de novo review of summary judgment orders, performing the same analysis as does a district court pursuant to Rule 56 of the Montana Rules of Civil Procedure. LaTray, v. City of Havre, 2000 MT 119, ¶ 14, 299 Mont. 449, ¶ 14, 999 P.2d 1010, ¶ 14.

¶33 Summary judgment may be granted only when there is a complete absence of genuine issues of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c); LaTray, ¶ 14. To determine whether genuine issues of material fact exist, we consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” M. R. Civ. P. 56(c). In doing so, we must view all evidence in the light most favorable to the non-moving party. LaTray, ¶ 15. Thus, as we have held, all reasonable inferences that may be drawn from the evidence must be drawn in favor of the party opposing summary judgment. LaTray, ¶ 15.

¶34 The party seeking summary judgment bears the initial burden of establishing a complete absence of genuine issues of material fact. LaTray, ¶ 14. To satisfy this burden, the moving party must “exclude any real doubt as to the existence of any genuine issue of material fact” by making a “clear showing as to what the truth is.” Toombs v. Getter Trucking, Inc., 256 Mont. 282, 284, 846 P.2d 265, 266 (1993). If the *39moving party satisfies this requirement, the burden then shifts to the non-moving party to set forth specific facts, not merely denials, speculation, or conclusory statements, in order to establish that a genuine issue of material fact does indeed exist. M. R. Civ. P. 56(e); LaTray, ¶ 14. Finally, if no genuine issues of material fact exist, it must then be determined whether the facts actually entitle the moving party to judgment as a matter of law. M. R. Civ. P. 56(c).

DISCUSSION

¶35 (1) Did the District Court err in concluding that Saucier’s tort claims are barred as a matter of law?

¶36 The district court concluded that Saucier’s tort claims were barred by the exclusivity provision of the Montana Human Rights Act (“MHRA”). In connection with this ruling, we review the salient provisions of the MHRA.

¶37 Title 49 of the Montana Code, which has come to be known as the MHRA, declares that the right to be free from discrimination on the basis of one’s gender or mental disability, among other attributes including race, age, and religion, “is recognized as and declared to be a civil right.” Section 49-1-102(1), MCA. Pursuant to this declaration, the MHRA prohibits particular types of discrimination in various settings such as employment, education, and public accommodations, among others. Sections 49-2-303 to 49-2-309, MCA1.

¶38 With respect to the employment setting, the MHRA defines unlawful discrimination with general terms and also by listing specific prohibited acts. In general terms, unlawful discrimination in employment is statutorily defined as the practice of making distinctions in “a term, condition, or privilege of employment” based on attributes such as age, gender, or mental disability, when the reasonable demands of the position do not require such distinction. Section 49-2-303(1)(a), MCA. The MHRA also designates particular conduct in employment as unlawfully discriminatory, such as differentiating in employees’ compensation based on race, refusing to employ an individual based on his or her religious beliefs, and utilizing an employment application that expresses a limitation as to age when the limitation is not based on a bona fide occupational qualification. *40Section 49-2-303(1)(a), (c), MCA. While this statutory definition of unlawful discrimination in employment has not been legislatively altered in relevant part since its enactment, it has been expanded by the decision in Harrison v. Chance, 244 Mont. 215, 220-23, 797 P.2d 200, 203-05 (1990), where this Court held that “sexual harassment,” including some forms of tortious conduct motivated by discriminatory intent, is a form of sexual discrimination.

¶39 In conjunction with its anti-discrimination provisions, the MHRA establishes procedures and remedies, separate from tort law, for legal redress of conduct which falls within the definition of unlawful discrimination. The Legislature has mandated that this remedial scheme is the exclusive means of legal redress for unlawful discrimination.2 Section 49-2-509(7), MCA. Consequently, a plaintiff subjected to acts which constitute unlawful discrimination in employment may not maintain a traditional tort action based on that conduct; rather, the plaintiff is limited to the specific procedures and remedies established in the MHRA. Harrison, 244 Mont at 220, 797 P.2d at 203. To provide context for our discussion here, we now review some of the primary elements of this statutory scheme.

¶40 Among other things, this exclusive remedial scheme requires that allegations of unlawful discrimination in employment must be brought in a complaint filed with the Human Rights Bureau of the Department of Labor and Industry (“Department”) within 180 days after the alleged unlawful discriminatory practice occurred or was discovered. Section 49-2-501(1), (4)(a), MCA; Admin. R. M. 24.8.201(1).

¶41 A timely filed complaint triggers an investigation by the Department. Section 49-2-504(1)(a), MCA. If the Department determines that the allegations are supported by a preponderance of the evidence, it must “attempt to achieve a resolution of the complaint by conference, conciliation, and persuasion.” Section 49-2-504(1)(a), MCA. If those efforts are unsuccessful, the Department must then hold an administrative hearing on the complaint. Section 49-2-505(1), MCA. After the hearing, if the Department finds that unlawful discrimination has in fact occurred, it must issue an order directing the accused party to refrain from such discriminatory conduct. Section 49-2-506(1), MCA. In addition, the Department is vested with the authority to:

(a) prescribe conditions on the accused’s future conduct *41relevant to the type of discriminatory practice found;

(b) require any reasonable measure to correct the discriminatory practice and to rectify any harm, pecuniary or otherwise, to the person discriminated against;

(c) require a report on the manner of compliance.

Section 49-2-506(1), MCA. Punitive damages are not available. Section 49-2-506(2), MCA.3

¶42 Thereafter, a party may appeal to the Human Rights Commission which, after an administrative hearing, may dismiss the complaint or grant any of the same components of relief which the Department is authorized to grant. Sections 49-2-505(4), 49-2-506, 49-2-507, MCA. Then a party may commence a civil action in district corut. Section 49-2-509(5), MCA. However, this type of civil action “may not be entertained by a district court other than by the procedures specified” in the MHRA. Section 49-2-509(6), (7), MCA. Thus, a discrimination claim in district court may not be tried before a jury because the MHRA provides for only a “contested case hearing” conducted in accordance with the Montana Rules of Civil Procedure. Sections 49-2-505,49-2-509, MCA; Vainio v. Brookshire, 258 Mont. 273,276-77, 852 P.2d 596, 599 (1993). Additionally, if the district corut does conclude that unlawful discrimination has occurred, it may not grant any relief other than that which the Department or the Human Rights Commission are authorized to grant pursuant to § 49-2-506, MCA.4 Section 49-2-509(6), (7), MCA.

¶43 Conversely, if the Department initially determines that the allegations of unlawful discrimination are not supported by a preponderance of the evidence, it must dismiss the complaint. Section 49-2-509(3)(c), MCA. The complainant may then seek review with the Human Rights Commission, after which a civil action may be commenced in district court. Section 49-2-509(3)-(5), MCA. Again, however, the case may not be tried before a jury, §§ 49-2-505, 49-2-509(7), MCA; Vainio, 258 Mont. at 276-77, 852 P.2d at 599, and the district courts’ authority to grant relief in such an action is no greater than the authority of the Department or the Human Rights Commission in the administrative proceedings, § 49-2-509(6), (7), *42MCA.5

¶44 As noted, these procedures and remedies constitute the exclusive means of redress for conduct which falls within the MHRA’s definition of unlawful discrimination. Section 49-2-509(7), MCA. That brings us to the first question we must answer to resolve the first issue in this appeal-that is, whether the conduct at issue here falls within the MHRA’s definition of unlawful “discrimination.”

¶45 In the proceedings below, the District Court determined that Keeton’s alleged conduct amounted to “sexual harassment.” Thus, because “sexual harassment” is a form of sexual discrimination prohibited by the MHRA, Harrison, 244 Mont. at 221, 797 P.2d at 204, and because the MHRA’s remedial scheme provides the exclusive means of redress for sexual discrimination in employment, § 49-2-509(7), MCA, the District Court concluded that Saucier’s tort claims are barred as a matter of law.

¶46 On appeal, McDonald’s argues that the gravamen of Saucier’s complaint is “sexual harassment,” and thus the MHRA’s exclusivity provision bars any tort action based on Keeton’s alleged acts, just as the District Court concluded. In support of this argument, McDonald’s cites our decisions in Harrison, Bruner v. Yellowstone County, 272 Mont. 261,263-64,900 P.2d 901, 903 (1995), and Arthur v. Pierre Ltd., 2004 MT 303, 323 Mont. 453, 100 P.3d 987. Conversely, Mallory argues that Keeton’s conduct went far beyond mere “sexual harassment” prohibited by the MHRA. In support of this argument, Mallory distinguishes the conduct at issue in Harrison, Bruner, and Arthur, and asserts that Keeton’s actions amount to criminal assault. We now turn to these cases.

*43¶47 In Harrison, the plaintiff filed an action in district court, alleging that her male employer had subjected her to repeated “unwelcome sexual advances” and “sexually explicit innuendos and offers”; that on one occasion he “forcefully kissed her against her will”; and that he ultimately demanded “she either ‘put out or get out.’ ” Harrison, 244 Mont. at 218, 223, 797 P.2d at 202, 205. Based on these allegations, the plaintiff asserted various tort claims, including battery and intentional infliction of emotional distress. Harrison, 244 Mont. at 223, 797 P.2d at 205.

¶48 In attempting to distinguish her employer’s conduct from the type of conduct prohibited by the MHRA, the plaintiff argued that the “alleged acts were sexual harassment, not sexual discrimination.” Harrison, 244 Mont. at 220, 797 P.2d at 203. We held that sexual harassment is a form of sexual discrimination prohibited by the MHRA. Harrison, 244 Mont. at 221, 797 P.2d at 204. In rendering this holding, we reasoned: “When sexual harassment is directed at an employee solely because of gender, the employee is faced with a working environment fundamentally different from that faced by an employee of the opposite gender. That difference constitutes sexual discrimination in employment.” Harrison, 244 Mont. at 221, 797 P.2d at 204 (internal citation omitted).

¶49 We then observed that sexual harassment can be framed in terms of numerous tort theories, and stated that this Court will not condone “such recharacterization [by tort terminology] of what is at heart a sexual discrimination claim.” Harrison, 244 Mont. at 223, 797 P.2d at 205. Finally, while acknowledging the tortious nature of the employer’s alleged acts, we ultimately focused on the “gravamen” of the complaint and thereby determined that the alleged conduct amounted to sexual harassment prohibited by the MHRA. Harrison, 244 Mont. at 222-23, 797 P.2d at 205. Consequently, we held that the MHRA’s exclusivity provision applied-i.e., that the plaintiff’s sole means of recourse was through the MHRA’s remedial scheme and she was therefore barred from pursuing a tort action in district court. Harrison, 244 Mont. at 223, 797 P.2d at 205.

¶50 In Bruner, a secretary for the Yellowstone County Attorney’s Office filed an action in district court alleging that she had been subjected to sexual harassment by a male deputy county attorney, and asserting a tort claim of negligent retention.6 Bruner, 272 Mont. at 264, *44900 P.2d at 903. The alleged conduct at issue was what we described as “unprofessional behavior” of a sexually harassing nature for which the perpetrator was required to attend a sexual harassment seminar and barred from spending time alone with the plaintiff at work. Bruner, 272 Mont. at 265-66, 900 P.2d at 904. As in Harrison, we looked to the gravamen of the complaint and concluded that “sexual harassment is at the foundation of her claim of negligent retention.” Bruner, 272 Mont. at 267, 900 P.2d at 905. Thus, in accordance with Harrison’s holding that sexual harassment is a form of sexual discrimination prohibited by the MHRA, we concluded that the MHRA’s exclusivity provision applied and the plaintiff was therefore barred from pursuing a tort claim in district court. Bruner, 272 Mont. at 267, 900 P.2d at 905.

¶51 In Arthur, the plaintiff, Amber Arthur (“Arthur”), was employed as a dining-room waitress at a hotel. Arthur, ¶ 6. She filed an action in district court alleging that one of her male co-workers, James Kennedy (“Kennedy”), had harassed her in various ways. Arthur, ¶¶ 6, 12. Specifically, she alleged that Kennedy had made inappropriate comments to her regarding her body and her personal relationship with her boyfriend; that he followed her about the dining room while she worked; that he had restricted her movement on occasion by cornering her in the dining-room office or behind the bar; and that he “slapped her on the buttocks” in one instance. Arthur, ¶¶ 8, 25. Additionally, Arthur alleged that Kennedy had similarly pursued her while away from work by, among other things, following her around town and appearing at her second job to bring her gifts. Arthur, ¶¶ 8-9. Based on these allegations, Arthur asserted the following causes of action: “(1) failure to provide a safe place to work, (2) negligent retention of Kennedy, (3) negligent supervision of Kennedy, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and (6) sexual harassment under the Montana Human Rights Act.” Arthur, ¶ 12.

¶52 In support of her tort claims, Arthur attempted to distinguish the alleged acts from the type of conduct that falls within the MHRA’s definition of sexual discrimination. Arthur, ¶ 18. In doing so, she argued that Kennedy’s conduct was “different-in-kind and distinct from sexually discriminatory conduct,” and that she “suffered injuries and damages of a greater degree than those typically stemming from workplace sexual harassment.” Arthur, ¶ 18. Arthur also argued that “Kennedy’s actions went beyond mere sexual harassment, escalating to criminal conduct such as sexual assault, stalking and intimidation.” *45Arthur, ¶¶ 18, 25.

¶53 In response, we adhered to our approach in Harrison and Bruner, examining the nature of Arthur’s factual allegations to determine the gravamen of her complaint. Arthur, ¶¶ 25-26. In doing so, we referred to language from Harrison indicating that sexual harassment can consist of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Arthur, ¶ 25 (citing Harrison, 244 Mont. at 221, 797 P.2d at 203). On that basis, we determined that Kennedy’s alleged acts amounted to verbal and physical conduct of a sexual nature which constitutes sexual harassment prohibited by the MHRA. Arthur, ¶ 25.

¶54 As for the argument that Kennedy’s acts constituted “criminal conduct,” we reasoned: “the fact that sexually harassing conduct also may constitute criminal conduct does not necessarily mean that it is not sexual discrimination as contemplated by the MHRA.” Arthur, ¶ 25. In support of this rationale, we