State of Ohio Significantly Overhauls Employment Discrimination Laws and Administrative Procedures
Labor & Employment @lert
Date: February 24, 2021
On January 12, 2021, Ohio Governor Mike DeWine signed into law the Employment Law Uniformity Act (the “Act”), which significantly overhauls Ohio’s employment discrimination and civil rights laws embodied in Ohio Revised Code (“O.R.C.”) Chapter 4112 (the “Civil Rights Law”), as well as other related statutes. The Act’s provisions, which create more consistency between Ohio’s employment discrimination laws and their federal counterparts, will go into effect on April 12, 2021. These are some of the highlights from this major piece of legislation that will be of great interest to employers.
Individual Liability No More
The current definition of employer under O.R.C. 4112.02(A) includes “any person acting directly or indirectly in the interest of an employer.” Since 1999, the Ohio Supreme Court has held that this language imposes individual liability for supervisors and other persons who engage in discriminatory conduct in the private employment context, a stark departure from federal employment discrimination law. See Genaro v. Central Transport, Inc., 84 Ohio St.3d 293 (1999); Hauser v. City of Dayton Police Dep’t, 140 Ohio St.3d 268 (2014) (limiting Genaro’s application to private employment). However, the Act will remove this phrase from the definition of “employer” – a move the General Assembly states is intended “to supersede the effect” of Genaro’s holding and eliminate individual liability for unlawful discriminatory practices under Ohio law.
Exhaustion of Administrative Procedures
Under current law, a person claiming employment discrimination may choose between either filing an administrative charge with the Ohio Civil Rights Commission (“OCRC”) or filing a civil lawsuit and, except where the claim is for age discrimination, the election of one avenue does not preclude the individual from later selecting the other. Under the Act, and with limited exceptions, individuals will no longer be able to file lawsuits claiming employment discrimination unless they have first filed a charge with the OCRC and either (a) received a notice of right to sue; (b) have requested—but not received—such a notice from the OCRC within 45 days after the date that the OCRC may grant the request; or (c) the OCRC issues a finding of probable cause after a preliminary investigation.
The only exceptions to this general rule are when the person seeks only injunctive relief, or when the person timely filed a charge with both the OCRC and Equal Employment Opportunity Commission (“EEOC”) – the agency that enforces federal employment discrimination laws – based on the same facts and has received a notice of right to sue from the EEOC.
Statute of Limitations Reduced Significantly
Formerly, a person could bring a lawsuit alleging any violation of the Civil Rights Law within six years after the alleged discriminatory act occurred. The Act now requires that the person must file the lawsuit within two years of such an event.
The statute of limitations is tolled while a charge based on the same allegations is pending with the OCRC. If the OCRC charge is filed less than 60 days before the time to file with the OCRC expires, the statute of limitations for the lawsuit is tolled for an additional 60 days after the charge is no longer pending with the OCRC.
Age Discrimination Claims Streamlined
The current law, prior to implementation of the Act, provides three independent and ambiguous methods by which a person may bring a claim for age discrimination:
- The person may file a charge with the OCRC within six months of the alleged violation. If an employee files a charge under this section, they are barred from filing a subsequent private civil action for age discrimination under Ohio law;
- The person may file a lawsuit under the Civil Rights Law’s general prohibition against age discrimination in O.R.C. 4112.02, which must have been filed within 180 days after the alleged unlawful discriminatory practice occurred; or
- The person may file a lawsuit under O.R.C. 4112.14(B), which establishes a separate cause of action for age discrimination based on discrimination in job openings or discharges without just cause where the employee was otherwise able to perform and meet job requirements. Claims under this provision were subject to a six-year statute of limitations.
The Act eliminates the latter two options, as well as the election-of-remedies doctrine previously applied to preclude individuals who filed a charge with the OCRC based on age discrimination from later filing a lawsuit based on the same conduct. Now, age discrimination claims will be subject to the same procedures as other claims for employment discrimination under Ohio law – the individual must first file a charge with the OCRC and may only file a lawsuit after one of the three events described above (See “Exhaustion of Administrative Procedures”) occur.
Faragher-Ellerth Affirmative Defense Codified
The Act also codifies the affirmative defense currently available to employers facing federal hostile work environment claims based on sexual harassment. Through this defense, commonly known as the Faragher-Ellerth defense, due to the U.S. Supreme Court decisions from which it is derived, an employer can defeat a hostile-work-environment claim if the employer can prove (1) it exercised reasonable care to prevent or promptly correct harassing behavior; and (2) the employee alleging a hostile work environment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Finally, the Act amends Ohio’s statutory provisions limiting recovery of non-economic and punitive damages to apply those limits to employment discrimination actions brought under the Civil Rights Law. Under these caps:
- Compensatory damages for economic loss (e.g., back pay, medical expenses) are not limited;
- Compensatory damages for non-economic loss (e.g., pain and suffering) cannot exceed the greater of $250,000 or three times the amount of the plaintiff’s economic loss to a maximum of $350,000 for each plaintiff or $500,000 for each occurrence;
- Punitive damages cannot exceed two times the amount of compensatory damages awarded to the plaintiff or 10% of a small employer’s or individual’s net worth when the alleged tort was committed, to a maximum of $350,000. Under Ohio’s punitive damages statute, “small employers” are those employers who do not employ more than 100 full-time employees or, if the employer is classified as being in the manufacturing sector by the North American classification system, no more than 500 full-time employees.
This is good news for employers. Many of the discrepancies between Ohio law and federal law in terms of the processing of alleged employee discrimination claims have been eliminated. Further, by codifying the Faragher-Ellerth defense, the Ohio Legislature has prioritized the importance that employer’s internal processes for addressing alleged discrimination claims can avoid costly and time-consuming litigation. This development will not only help streamline litigation of Ohio employment claims, which in turn will reduce litigation costs for all involved, but it should also further disincentivize the filing of frivolous or stale claims.
FOR MORE INFORMATION
For more information, please contact:
Nancy M. Barnes
M. Scott Young
Anthony P. McNamara
or any a member of Thompson Hine’s Labor & Employment group.
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