Join our January 28 webinar, Understanding Ohio’s Revised Non-Discrimination Laws, for an in-depth discussion of these discrimination law changes and their impacts on businesses.
On January 12, Ohio Governor Mike DeWine signed into law House Bill 352 (HB 352), which will bring welcome changes regarding important aspects of employment-related discrimination law in Ohio. These changes will become effective in 90 days. Among other things, the new law:
- Changes the definition of "employer" to remove supervisors and managers from personal liability in most employment discrimination lawsuits;
- Eliminates, with limited exceptions, direct civil actions unless a charge is filed with the Ohio Civil Rights Commission (OCRC) first; and
- Shortens the statute of limitations for pursuing discrimination claims from six years to two years.
Reduced Personal Liability for Supervisors and Managers
Since 1999, supervisors and managers have faced the threat of personal liability in employment discrimination lawsuits because the definition of "employer" included any person acting directly or indirectly in the interest of an employer. The new law excludes such individuals from the definition of employer, effectively eliminating supervisor/manager personal liability unless:
- The individual is serving as the actual employer; or
- The claim is one for:
- Retaliation for opposing a discriminatory practice;
- Aiding a discriminatory practice; or
- Obstructing a person from complying with the Ohio Civil Rights Law.
The law supersedes Genaro v. Central Transport, Inc., 84 Ohio St. 3d 293, 1999-Ohio-353, in which the Ohio Supreme Court held that a supervisor can be jointly or individually liable with the employer for discriminatory conduct. This revision brings Ohio law in line with the majority of other states and removes much of the risk of personal liability for managers and supervisors. Employers are still advised to properly train managers and supervisors as to duties related to anti-discrimination and anti-retaliation and their role in reporting possible misconduct and facilitating employee complaints related to potential violations of the Ohio Civil Rights Law.
Elimination of Direct Civil Actions – Administrative Exhaustion Requirement
Prior to HB 352, a person could bring a lawsuit alleging any violation of the Ohio Civil Rights Law (a "general" lawsuit) directly to state court within six years after the alleged discriminatory act occurred. The new law removes employment discrimination claims from general lawsuits and requires complainants to first raise allegations in an agency proceeding with the OCRC, requiring exhaustion of administrative remedies prior to filing suit in court. Now, allegations of unlawful discriminatory practices relating to employment must be filed as an "employment-specific" lawsuit and can only be filed once the claimant has exhausted his/her administrative remedies and received a right-to-sue letter
from the OCRC or federal Equal Employment Opportunity Commission (EEOC). Claimants seeking solely injunctive relief, however, are excused from the administrative exhaustion requirement.
Statute of Limitations
Under the former law, the Ohio statute of limitations for employment discrimination was six years, one of the longest in the nation. The new law shortens the time in which an employee has to file a lawsuit to two years and makes clear that this shortened statute of limitations applies to the filing of both state and federal employment discrimination law claims. Of course, the statute of limitations is tolled – or paused – 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 Lawsuits Simplified
Previously, there were three separate ways to file an age discrimination claim in Ohio, with differing statutes of limitation, which caused confusion for employers and employees. The new law codifies just one recognized process for employees to initiate claims of age discrimination under state law pursuant to ORC § § 4112.052 and 4112.14. HB 352 clarifies that both the exhaustion of the OCRC procedures requirement and the two-year statute of limitations apply to age discrimination in employment claims.
Affirmative Defense for Hostile Workplace Claims Codified
The new law codifies an available affirmative defense to hostile workplace harassment claims. Patterned off of the U.S. Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), an employer may avoid vicarious liability for allegedly harassing conduct by a supervisor if it can prove that: (1) the employer exercised reasonable care to prevent or promptly correct the sexually harassing behavior; and (2) the employee alleging the hostile work environment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. This affirmative defense remains
unavailable if the supervisor’s harassment resulted in a “tangible employment action,” such as termination of employment, demotion, or reassignment to a significantly worse position.
Employment Discrimination Lawsuits Are Now “Tort” Actions; Clarifying Damages Available
The new law specifically includes employment discrimination lawsuits in the definition of "tort action" in the Trial Procedure Law. This serves to codify what was generally assumed to be the law, again providing employers with needed clarity.
Because discrimination actions are now defined as tort actions, the following apply:
- No limits on compensatory damages for the plaintiff’s economic loss (lost wages, compensation, and expenditures for medical care/treatment, etc.);
- Compensatory damages for the plaintiff’s noneconomic loss (including pain and suffering, etc.) cannot exceed the greater of either: (1) $250,000; or (2) three times the plaintiff’s economic loss, to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence forming the basis of the tort action; and
- Unless the defendant committed the tort "purposely" or "knowingly," punitive or exemplary damages are capped at two times the amount of compensatory damages awarded to the plaintiff or 10% of a small employer’s or individual’s net worth, to a maximum of $350,000.
Wrongful Discharge Claims Eliminated for Employment Discrimination
Under HB 352, the procedures and remedies for unlawful discriminatory practices relating to employment are limited to those available under the Ohio Civil Rights Law. In other words, common law claims, such as claims for wrongful discharge in violation of public policy, are no longer available for employees alleging unlawful discriminatory practices arising out of their employment.
Procedure for Employment Discrimination Charges With the OCRC
There are eight stages in the life of a charge filed with the OCRC:
- Filing,
- Initial alternative dispute resolution,
- Investigation,
- "Probable cause" determination,
- Informal conciliation methods,
- Complaint,
- Hearing, and
- Orders.
The new law makes changes to several stages, the most significant of which are those made to the Filing and Investigation of a charge:
-
Filing: Previously, a charge had to be filed with the OCRC within six months after the alleged unlawful discriminatory practice was committed. That time frame has been enlarged to permit a complainant two years from the date of alleged unlawful conduct to file a charge.
-
Investigation: HB 352 added new rights for complainants in an OCRC proceeding. Under the new law, the OCRC is allowed to engage in preliminary investigation, but the complainant is allowed to make a written request that the OCRC cease the investigation and issue a right-to-sue notice as long as 60 days have passed since the charge was filed. If 60 days have passed since the initial filing, the OCRC can issue an immediate notice of right to sue.
Continuing Role for the OCRC
While the OCRC’s involvement was previously limited to the agency proceeding or involvement in a matter where the OCRC determined it had "probable cause" to believe a violation of law existed, the new law clarifies that the OCRC may continue to offer assistance to a complainant after issuing the notice of right to sue. HB 352 also permits the OCRC to intervene in a lawsuit alleging an unlawful discriminatory practice related to employment if it deems the case of public importance.
These new changes provide employers with much-needed clarity and predictability, while still safeguarding employees’ right to be free from workplace discrimination. Provisions that long have been considered anomalies under discrimination laws across the country – such as Ohio’s former six-year statute of limitations and expansive definition of "employer" routinely exposing supervisors/managers to personal liability – have now been removed. Ohio has maintained its commitment to allowing victims of discrimination to maintain actions to address such unlawful conduct while eliminating overly broad, often redundant and inefficient aspects of the law that should better serve both employees and
employers alike.
If you have questions on these changes, or any other employment-related topic, please contact one of the attorneys listed below.
Understanding Ohio’s Revised
Non-Discrimination Laws
Thursday, January 28, 2021 ι 9:00 a.m. – 10:15 a.m. ET
Please register to attend our upcoming webinar for an in-depth discussion of these issues and the ways they may impact your business in the coming year. Discussion topics will include:
- Who can now be sued? When?
- What are the revised filing, investigation and resolution procedures of the OCRC?
- What are the remedies and damages now available?
- What can employers expect under the new law?
Register to attend. You are welcome to share the invitation with other colleagues who may have an interest. Thank you.
PDF
