Ohio Governor Mike DeWine recently 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 90 days after filing with the Secretary of State. Attorneys with Calfee's Labor & Employment attorneys discussed these significant changes.
Video Transcript
John Cernelich:
Well, good morning everyone. I'm John Cernelich and I'm the co-chair of the labor and employment group here at Calfee, Halter & Griswold. Thank you very much for joining us here this morning. We really appreciate it. We sent out our invite a couple of weeks ago and we have over 225 participants.
John Cernelich:
So that's either because we put on stellar seminars and I've got a big ego, so I assume that's part of it. So thank you. But more likely, it's a function of this topic. And I will tell you I know a lot of you who are practicing in the labor and employment area, HR area, you get a lot of emails and updates and what have you.
John Cernelich:
A lot of it is on federal law, the new coronavirus laws, some updates as to legislation pending in Congress and what have you, but you don't get much in terms of revisions of Ohio law. We find that to be the case. And so quite frankly this new law that was passed, it kind of flew under the radar screen.
John Cernelich:
And we became aware that this was in motion, I'd say in early January and we did keep an eye on it. And then when the governor signed it on January 12th, we wanted to get the information to you. And I find that there's just sometimes a dearth of information about revisions to Ohio law.
John Cernelich:
So I think our terrific numbers here are a function of this being the new kid on the block and the good HR professionals and in-house counsel and attorneys with whom we work, wanting to know what's going on. So we hope we have that kind of presentation here this morning that will let you know about this revision of the law and give you some practical advice.
John Cernelich:
Joining me is Abbey brown. Abbey is an associate at our law firm. I know a lot of you have worked with Abbey. She does an awful lot of work in the discrimination area. She's going to talk a little bit about the OCRC process, in particular responding to OCRC charges, position statements, and what have you, because Abby really kind of has pulled the strong oar for our firm in that space.
John Cernelich:
And I know a lot of you have worked with Abbey in preparing submissions to the OCRC. So in any event, let's talk about what has happened here. If you have questions, feel free to type them in. We are going to try to answer them at the end of our presentation. We won't be answering them in real time. We'll try to save that for the end.
John Cernelich:
We'll get to as many as we can. And if we don't get to your question, don't be shy about calling me or Abbey later today. And we will absolutely talk to you about your question. We want to make sure you have the information that you need. So thank you for joining us and let's talk a little about what's going on here.
John Cernelich:
So let's take a look at the general prohibition. We all know that the law in Ohio is all encompassing, it mirrors federal law. In under section 4112.02(A) of the Ohio revised code, there's a prohibition against an employer from using race, color, religion, sex, military status, national origin, age, disability, or ancestry of any person as the basis for discharging, refusing to hire or otherwise discriminating against the person with respect to higher tenure terms, conditions, or privileges of employment or any matter relating to employment.
John Cernelich:
So that's basically Ohio's general non-discrimination statute, and it's very broad. And it is at the very beginning of the chapter 4112 that covers discrimination. And again, you see it covers pretty much everything. What's interesting is sexual orientation is not specifically mentioned there folks.
John Cernelich:
And I thought maybe when the legislature was taking a look at this log in, they would follow what the United States Supreme Court has done and provide for protection against sexual orientation. And they did not do that when this law was passed. Now, does that mean in Ohio there are no protections against sexual orientation discrimination?
John Cernelich:
I think the answer is no. As many of you know a lot of municipalities, a lot of cities have protections, but many courts read the protection against sex discrimination to also cover sexual orientation. That's pretty much how the Ohio or the United States Supreme court got there.
John Cernelich:
The argument is that sex discrimination should also prevent against sexual stereotyping and the like, and so sexual orientation discrimination is prohibited by reason of the sex discrimination prohibition. I think Ohio courts are inclined to do that.
John Cernelich:
I've not had a case exactly on point, but my counsel to clients is always that they should assume that that's covered by 4112.02(A) and that the courts in Ohio will pretty much track what the federal courts have done in terms of the jurisprudence based on discrimination.
John Cernelich:
When you look at the statutes prohibits discrimination in employment in Ohio 4112, there is a definition of employer and right now employer... Or I'm sorry. Well, right now until April when this law is effective an employer liable for includes the state, any political subdivision of the state, any person employing four or more persons within Ohio and any person acting directly or indirectly in the interest of the employer.
John Cernelich:
So a couple of things there. Under title seven, we have a federal law that protects against employment discrimination, title seven, and we have this law. Title seven only covers employers of 15 or more. I mean, it covers, again, more employees have to be there in order for title seven to kick in.
John Cernelich:
Here in Ohio, it's four or more. And you can see under this old definition, again, the current definition of employer, any person acting directly or indirectly in the interest of the employer could be liable for discrimination as well. The revised law, the law that's going to take effect in April, it removes any person acting directly or indirectly in the interest of the employer.
John Cernelich:
And that's specifically taken out of the statute, but the definition now expressly includes agents of the state, political subdivision or person. So the thing that's interesting there, it does say person. The way I read that is, and they have some guidance in the legislative history, that the call here was to say, for instance, if an individual is working directly for a person, let's say a gentleman who owns a landscaping company and maybe he's running that business as a sole proprietor, what have you.
John Cernelich:
That you can still have discrimination if you are an employee of a person. So that kind of doesn't end around as to the four or more employee threshold for employers. 4112.08 now specifically states no person has a cause of action or claim based on a lawful discriminatory acts relating to employment based on discrimination against a supervisor, manager or other employee of an employer, unless such as the employer. Again, unless such is the employer.
John Cernelich:
So again, if the individual is the employer, you could have a cause of action, but this is a sea change. You can't sue now if you're a charging party under Ohio's discrimination laws. You can't bring actions against supervisors, managers or coworkers. And you can't pursue cause of action against employees.
John Cernelich:
And let me digress here for a minute. We have a statute on the books, section 4112.99. Many of you are familiar with that and it says, whoever violates this chapter is subject to a civil action for damages, injunctive relief or any other appropriate relief. So 4112.99 was at the end or is at the end of the 4112 chapter.
John Cernelich:
And what happened in the late 90s, the Ohio Supreme Court interpreted that general statute 4112.99 to allow for causes of action for discrimination without having to go through the OCRC. You could go right into court and that's what many plaintiff's lawyers do. They bypass the OCRC. They use 4112.99 and go right into court.
John Cernelich:
Because it says, whoever violates this chapter is subject to civil action for damages, injunctive relief, or other appropriate relief, individuals could be sued under 4112.99, and typically are sued under 4112.99. The purpose of the revision here, this is very specifically designed to provide that individuals can no longer be sued under 4112.99.
John Cernelich:
All of these actions now have to go through the OCRC. The OCRC charge has to be filed. And there's no direct cause of action. So this is really a sea change. It takes away that threat under Ohio law of individuals being sued. For instance, an HR professional, a supervisor who delivers the termination or the manager.
John Cernelich:
And that's kind of a big deal. Now, what about federal law? Because again, there's state law and there's federal law. What about title seven? Well, title seven does have some language that suggests that the prohibition also applies to agents of employers, but the sixth circuit and most circuits do not find that there's individual liability against supervisors and the like under title seven.
John Cernelich:
Now, the Ohio Supreme, or I'm sorry, the US Supreme Court has never specifically addressed that, but that's the law of the sixth circuit. Same thing with the federal age discrimination statute, the ADEA. The current law, the sixth circuit does not allow for personal liability for individual discrimination.
John Cernelich:
So typically plaintiff side lawyers, if they wanted to sue the company and individuals, the preferred course of action was to go pursuant to 4112.99, and to sue the company and individuals. That now has been eliminated.
John Cernelich:
Now, there is a provisor under 4112.08 that says nothing in this division abrogates statutory claims outside of this chapter, or any claims of liability that exists against an individual at common law. So they put that in there, I think specifically to say, hey, if there is a cause of action for, let's say assault and battery in a sexual harassment kind of case, you may see that being included more frequently.
John Cernelich:
It's not included that often right now, but you could see plaintiff's lawyers trying to access these kinds of causes of action to join individuals now in lawsuits, in that the discrimination statutes expressly prohibit individuals from being joined.
John Cernelich:
Now, that all being said, and I think that really was a lot of the main purpose of this revision that the legislature has passed, there are exceptions. It appears that individuals can be sued for the following, retaliation for opposing a discriminatory practice.
John Cernelich:
So if it's a retaliation claim, let's say an employee comes forward and she says that she believes that her coworkers are being sexually harassed. And then somehow a supervisor is upset with her and she suffers an adverse employment action, a demotion, a firing, what have you, it would appear from the carve out here that that claim can be pursued against that supervisor in his individual capacity.
John Cernelich:
So that's important because there are quite a few retaliation suits that are pursued. And so it's really important that supervisors of course understand that there can be no retaliation even if the claim is baseless, which is often the case. There can be no retaliation.
John Cernelich:
And if that individual retaliates, he or she can be subject to the personal liability, not to mention, I mean, not withstanding the change in the law here. And then here's this one, aiding a discriminatory practice. If a person aides a discriminatory practice, he or she could be individually liable.
John Cernelich:
And then third, obstructing a person from complying with those Ohio civil rights laws. So if a supervisor tells someone that they can't go to the OCRC and file a charge or what have you and leans in and is aggressive and threatens, that could lead to individual liability.
John Cernelich:
But I want to go back to the second one, aiding a discriminatory practice. I will tell you that this gives me a headache because the whole purpose of the statute, I think, was to avoid that individual liability. But look at this carve out, aiding a discriminatory practice.
John Cernelich:
You can make an argument that if someone delivers the termination notice and the terminated employee believes that that was discrimination, that supervisor or that HR professional could be accused of aiding a discriminatory practice. So I'm troubled by that and I think we have an issue here that the courts are going to have to address.
John Cernelich:
My takeaway is we have an express provision now in this law that says that supervisors and managers and the like are not subject to liability under the statute. And that express specific provision, I think, should trump this. But I do think that resourceful plaintiff's lawyers are going to argue that individuals are still subject to liability based on that.
John Cernelich:
That's nonsensical to me, right? Because then the exception would swallow the rule, but I point that out to you because it's there. And I expect that we're going to see some law made in that area in the next few months.
John Cernelich:
So one of the things about 4112.99 with a few exceptions, I think perhaps for age discrimination it had a six year statute of limitations. So most plaintiff's lawyers would look to that again, because you could sue more people and it had a six year statute of limitations.
John Cernelich:
You have to file an OCRC charge within six months under the current system. You can go into court, like I say, and bypass the OCRC within six years. Now this new law which requires all the causes of action to be pursued through the OCRC, through the administrative law process, expands the time to file a charge from six months to two years.
John Cernelich:
So this appears to be a quid pro quo in terms of the negotiations that led to the passage of those flaw. There is no individual liability anymore. And that six years as I mentioned, statute under 4112.99 has got rolled back, but the time to file a charge is two years.
John Cernelich:
So again, if you do a reduction in force, as many people have done here during the pandemic and let's say that an older worker suggests that she was picked on unfairly and discriminatorily for a reduction. She could file a charge against you up to two years after the fact. So keep that in mind.
John Cernelich:
And that's an expansion, but again, there was a quid pro quo for that, I think. And again, as I said, under 4112.9, people can bring a cause of action with limited exception up to six years. And this really was again, part of the problem.
John Cernelich:
And I think the thing the legislature also wanted to address, six years to pursue a discrimination lawsuit is among the longest, if not the longest statute of limitations in the entire country. And because it was six years and many of you with whom I've spoken, we've talked about the fact that we have to retain personnel records for at least six years.
John Cernelich:
You can be challenged under all those bases, sex, national origin, ancestry, religion up to six years after the fact. So this was a long statute of limitations and it's on the books now till April when this new law is in effect. And the new law eliminates the direct actions as it said under 4112.99.
John Cernelich:
You have to go through the OCRC and you have to exhaust the OCRC procedures. Abby will take us through that. And the six year statute of limitations is then gone. The rule now is that if you believe that you're a victim of discrimination as of April the 12th when this law is in effect, you have to go to the OCRC, you have to file a charge of discrimination.
John Cernelich:
You cannot get a lawyer and go directly to court under section 4112.99. You have to file the charge within two years and the statute of limitations six years is gone. And I can tell you that is very, very welcome.
John Cernelich:
Because six years, of course, if someone filed something and I've had a couple of those, someone files a charge that late memories, of course fade, people may have moved on who were supervisors and what have you. So it was very problematic. And that's a welcome change, I think for employers in this state.
John Cernelich:
So now the persons are prohibited from filing a lawsuit unless the person has filed a charge with the OCRC and the OCRC has done one of the following, issued a right to sue notice. You're probably not used to seeing right to sue notices from the OCRC. Some of you have seen them from the EOC, but now the OCRC will be issuing right to sue notices.
John Cernelich:
And we'll talk a little bit about that. And if you request a right to sue notice, which you're going to be able to do now as a charging party, you can't do that until the charge has been pended for 60 days. But if you request it and somehow the OCRC has not issued a right to sue notice, you can then go into court 45 days after that request.
John Cernelich:
So you may see plaintiff's lawyers working with charging parties, telling them to go to the OCRC. Once the charge is pending at the OCRC, the charging party can request a right to sue notice at any time, and that should be issued, but they have to wait at least 60 days. So it sits with the OCRC at least 60 days.
John Cernelich:
And then they can request a right to sue notice to go into court if they want to bypass the OCRC. And the OCRC is supposed to issue that. I would think that they would issue that pretty quickly, because it gets off of their plate.
John Cernelich:
But if they don't for some reason and a request is made 45 days thereafter, the individual could go into court or if the OCRC after investigation has found probable cause, the charging party can go into court.
John Cernelich:
And many of you we've worked with in preparing these OCRC position statements and what have you, probable cause is rare, thankfully, among our clients. But if there is that probable cause determination, there is the process that Abby will tell us about that the OCRC and those cases will conduct a hearing.
John Cernelich:
But if a person doesn't want to go that route and would rather go into court once they get that probable cause determination, they can pursue an action in common police court. There are some exceptions to this though. If the person is only seeking injunctive relief, they don't have to wait. They can go into court.
John Cernelich:
Those are very, very rare. They usually have to do with practices or policies and what have you, and often kind of they're pursued on behalf of a class of people. But that's very rare. And if a person has dual filed, which is often the case with both the OCRC and the EOC and the EOC has investigated and issued its own right to sue notice, then the person can use that to go into state cart.
John Cernelich:
Usually when there's a right to sue notice with a federal investigation, people will pursue the cause of action under title seven in federal court, but they could go to state court. And this says, if the EOC kind of took the lead in the investigation and there's a right to sue notice, then the individual can initiate an action under Ohio statutes again, which are parallel in state court.
John Cernelich:
The new law requires that a lawsuit is to be filed after the exhaustion of the OCRC procedures within two years after the alleged discrimination occurred. So it's a little confusing, but you have to file your OCRC charge within two years. And then once that charge is pending investigated, the lawsuit has to be filed within two years after the alleged discrimination occurred.
John Cernelich:
And so that brings up the situation, what if the charges pending there with the OCRC? What do you do if you're coming up against that two year limitation period to bring a cause of action? And that was addressed. There's a totaling provision in the new law.
John Cernelich:
If the charge is filed with the commission less than 60 days before the two year filing deadline, the limitations period is told for an additional 60 days after the charge is no longer pending with those OCRC. So if you file it with less than 60 days before that, then it gets frozen in essence until there's an investigation.
John Cernelich:
And then once that investigation is done, or you ask for right to sue letter, you have that 60 days after that discontinuance to go into court. The other scenario is if the charge is filed 60 days or more before for the two year deadline, which is kind of what you you think, right? Someone is terminated.
John Cernelich:
They believe they're a victim of discrimination. Maybe they seek counsel and they file pretty quickly their charge of discrimination. In those cases when they've done it well before that two year filing deadline to go to court, the time period to file a civil action is told from the date the charge was filed and ending on the date the charge is no longer pending with the commission.
John Cernelich:
Look at that language, ending on the date the charge is no longer pending with the commission. This we've been talking about this, Abby and I have been kicking this around, our group's been kicking around. So in your typical scenario, let's say that there becomes a probable cause determination.
John Cernelich:
It's no longer pending, and the person gets that charge. Is the date that they have to file in court the date that the probable cause was was issued? Because that's the date it is no longer pending with the commission. It doesn't seem like they built in any window or any guidance here. It's when it's no longer pending.
John Cernelich:
So is it that day? Is it the date it was decided? Is it the date they received it? This is an area we're going to pursue in defending these claims, but it's curious to me because they didn't build in kind of an express kind of safe harbor here. So keep that in mind when these lawsuits materialize following the filing of a charge, there could be some limitations period defenses.
John Cernelich:
But I think that we might get some guidance there. One of the things I should mention is the OCRC publishes rules about and its own interpretations of its laws in the Ohio administrative code. I would expect there fairly soon, it would be great if it would be before the effective date of this law, but I would expect that the OCRC will be issuing some administrative guidance here to help us when it comes to some of these kind of gray areas.
John Cernelich:
And this is welcome news two. 4112.08(B) now specifically says that the procedures and remedies for unlawful discriminatory practices relating to employment in this chapter are the sole and exclusive procedures and remedies available to a person who alleges such discrimination actionable under this chapter.
John Cernelich:
Many of you know that we have public policy claims here in Ohio where in the lead case was called Greeley, the house Supreme Court provided for that. I won't bore you with a long discussion of that, but Greeley allowed for claims based upon public policy exceptions to employment at will.
John Cernelich:
So in Greeley, it had to do with wage garnishments and an individual alleged she was terminated for her wage garnishments. The employer didn't want to deal with them anymore. And the wage garnishment statute specifically said that if an employer discriminate some, retaliates against someone for wage garnishments, there was a monetary penalty the employer has to pay.
John Cernelich:
And that you would think is the damages, but the Ohio Supreme Court said, nope, you can bring a wrongful termination claim as an exception to implement well based upon the policy embodied in that statute, which is, we don't discriminate against people who are subject to wage garnishments.
John Cernelich:
So not withstanding that the legislature provided express damages, the person was allowed to use that public policy and that statute and bring a separate cause of action to get more damages. And plaintiff's lawyers have since then been trying to argue a lot of public policy exceptions.
John Cernelich:
And they have tried to say, particularly if something is time-barred or what have you, that the public policy here under 4112.02 allows for a separate cause of action separate apart from going through the OCRC, even separate apart from 4112.99.
John Cernelich:
Now those were relatively rare because again, 99 allows for such a broad and number of people who can be sued in such a long statute limitations, but people were trying to bring these public policy claims. And now the Supreme Court said, no, you simply cannot do that. You have to go exclusively through the OCRC.
John Cernelich:
There was a tag on here that they clarified that there's a couple of federal statutes that protect against discrimination. 4112.1981(A) which protects against civil rights violations for intentional discrimination in the race context, 42 U.S.C 1983 prohibits civil rights violations by municipalities and government agencies and others acting under the color of state law, 42 U.S.C 1985 deals with a person injured by an act of conspiracy basically to deprive a person of civil rights.
John Cernelich:
These aren't used. 1983 is for in public sector cause of action. But we don't see that much under these statutes because again, people use title seven or 4112.02, but the legislature took advantage of this change in the law to provide a specific statute of limitations. Because these laws, it wasn't clear what statute of limitations applied to them.
John Cernelich:
And so they provided two years here. And again, the most relevant for public sector employers is 1983. The courts had interpreted it to be two years and now it's codified in state law there. There is another welcome addition in this new law.
John Cernelich:
Employers may raise an affirmative defense to vicarious liability for hostile work environment, sexual harassment claims as to sexual harassment allegedly caused by supervisors. If they can prove the following, one that they exercise reasonable care to prevent or promptly correct any sexually harassing behavior and the employee alleging the hostile work environment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
John Cernelich:
So this is specifically in the statute now in 4112.054, and you may recognize this under federal law, under title seven, the Supreme Court came up with a couple of cases called Faragher and Ellerth.
John Cernelich:
And they provided this as a matter of course, it's not in title seven per se, but the Supreme Court provided that if the employer takes reasonable steps to avoid sexual harassment and to address sexual harassment, and an individual did not avail herself for, for instance, a reporting mechanism or other reasonable steps, then there can be a bar to damages.
John Cernelich:
The individual may be able to prove harassment that because she didn't take advantage of these things, there could be no money damages. The Ohio legislature has now embodied this specific defense into the statute. And this has to do with again, hostile work environment, sexual harassment. Not quid pro quo harassment or what have you.
John Cernelich:
So again, now our clients have always, I think committed themselves to avoiding sexual harassment and what have you, and they have mechanisms in place, good policies, reporting procedures, hotlines, and what have you. They typically will aggressively investigate, thoroughly investigate claims of sexual harassment, discriminatory harassment, or what have you.
John Cernelich:
But if you don't have those in place or if yours are outdated frankly, because of this addition to the law here, this express affirmative defense, I would really encourage you to revisit what you have and to make sure that you've got the state of the art here, because this is an invitation by the legislature to avoid problems by taking appropriate actions upfront.
John Cernelich:
And again, the individual has to, for instance, not use a reporting mechanism and then go directly to the OCRC and not give you a chance for instance, to address this internally. Those are instances when someone does that where there can be, again, this defense that would preclude the individual from getting damages.
John Cernelich:
It's important to recognize that that affirmative defense is not available if the supervisor's harassment resulted in a tangible employment loss against the employee. This is therefor things like, again, the groping, the leering, the comments, the sexism, and what have you.
John Cernelich:
If there's an instance where a supervisor engages in sexual discrimination and sexual harassment by firing someone, by denying them a job, by failing to promote them, those affirmative defenses are not available.
John Cernelich:
So again in terms of takeaways, and we welcome the opportunity to review what you have and to work with you, because again we have an express invitation by the legislature for employers to implement these things that can go a long way to avoiding liability. Okay. At this point, I'm going to turn it over to Abby.
John Cernelich:
She's going to talk to you a little bit about the revisions of the OCRC's process. A lot of you I know deal with OCRC charges, respond to OCRC charges, work with us in terms of preparing position statements. And let's talk now about how this process has been revised effective April of this year. Abby.
Abbey Brown:
Okay, thanks John, and thanks everybody for bearing with us while we have our technical issues here. I think I'm good. John, does my screen look good?
John Cernelich:
Yeah, it looks good to me.
Abbey Brown:
Okay, great. So as John mentioned, an individual who believes they have a claim cannot pursue a lawsuit in court unless he or she has filed a charge with the OCRC first. And that's referred to as an exhaustion requirement because it requires plaintiffs to exhaust their administrative remedies first in theory.
Abbey Brown:
Though as we'll see, plaintiffs will have a lot of ways to kind of cut that process short with the OCRC as long as a few criteria are met. So what does the process at the Ohio Civil Rights Commission look like? Well, there are eight potential stages in the life of a charge.
Abbey Brown:
They're filing initial alternative dispute resolution, investigation, probable cause determination, informal conciliation methods, and then complaints, hearings and orders. So we're going to kind of take you through that.
Abbey Brown:
So just to begin, I may refer to an individual who files a charge as a charging party because it's a charge of discrimination or a complainant or a claimant, and all of those things can be used interchangeably. So an employee might initiate this process by filing a charge with the OCRC and that charge has to be made in writing and under oath.
Abbey Brown:
And previously an individual had six months from the date of the alleged discriminatory practice to file that charge. And as John mentioned, that's now been expanded to two years. So now, a charging party can file with the OCRC anytime within that two years.
Abbey Brown:
The new law requires the OCRC to notify a charging party at this stage that filing a lawsuit is prohibited, a direct lawsuit is prohibited unless those conditions are met or an exception applies. And John kind of briefly mentioned this earlier, but at this point, the OCRC really is required to kind of explain the law to the charging party.
Abbey Brown:
So right at the start, when the individual files his or her charge, the OCRC has to notify the charging party that filing a lawsuit is prohibited unless again, one of those three conditions are met or one of the two exceptions are met. And again, the three conditions are that the charging party has received the notice of the right to sue from the OCRC.
Abbey Brown:
They've requested the notice of the right to sue and for whatever reason, the OCRC just hasn't issued one and it's been 45 days since the date they could have granted that request and issued the notice. Or finally, the OCRC after investigation found probable cause and the charging party just elects to sue at that point rather than continuing through the OCRC process.
Abbey Brown:
So either one of those three conditions has to be met, or one of the two exceptions has to apply that John mentioned earlier. And that's the person's only seeking injunctive relief, which we don't see that very often or the person dual filed and they've got that EOC notice of right to sue. So then they can go straight into court.
Abbey Brown:
So again, right at the filing stage, the OCRC has to kind of remind charging party that that's the state of the law, and those are the restrictions that apply. Okay, the next stage is the initial alternative dispute resolution and there's no change to this part of the law.
Abbey Brown:
Just as before, the OCRC can attempt to resolve the charge before it even investigates through use of this initial alternative dispute method. So for example many of you I'm sure have seen this, employers will get notified that a charge has been filed against them, and right in that notice there's an option to mediate prior to even responding to the charge with a position statement.
Abbey Brown:
We've had sort of mixed results. In some cases, mediation I think is helpful. And other times it often seems like they're just looking for a middle number and the merits of the case aren't always examined as we think they should be. So we've had mixed results, but that is the next stage.
Abbey Brown:
And then next is investigation of the charge. And it's important to remember investigators are not always attorneys. And so the respondent will be asked to respond to certain questions and provide a position statement that addresses the allegations raised in the charge. And typically the OCRC will give about 30 days for the employer to submit a position statement.
Abbey Brown:
And one thing we've been sort of wondering is whether these new provisions will change. It'll be interesting to see whether they will change how the OCRC responds to and initiate these investigations.
Abbey Brown:
So now that the charging party has the ability to kind of cut short that process and request the notice of right to sue after 60 days, one possibility is that we're going to see investigators want to quickly wrap up their investigations quickly before the 60 days passes so that they get a bite at the apple.
Abbey Brown:
Another possibility, which I think might be more likely is that investigators really might not be in a hurry to do much of anything before the 60 days happens. Just to kind of eliminate work on a case where a charging party withdraws and goes to court after 60 days, basically avoiding kind of spinning your wheels on a case that was just filed in order to purely comply with that administrative exhaustion requirement.
Abbey Brown:
Or maybe there will be no change at all in the behavior of investigators at the OCRC. We will just have to see what happens there. And when we are asked to write a position statement for clients, the process that we typically go through, the charge will come typically with questions and sometimes employers will just simply respond to those questions, but we don't think that's really the best way to go about putting your best foot forward and making your best, most persuasive argument.
Abbey Brown:
What we do is we usually kind of conduct an investigation, a little mini investigation. We interview witnesses gather relevant documents and really just try to figure out what happened here. And then we put together the position statement presenting our defense of the company's actions.
Abbey Brown:
And we really treat these position statements like little mini motions for summary judgment, or sometimes not so many depending on how complicated things are. We lay out the facts, the law, we explain relevant case law, particularly if something is complicated or has a bit of nuance.
Abbey Brown:
And then we really explain how the law applies to our situation and ask the OCRC to dismiss the charge with a finding of no probable cause. And we've had quite a bit of success. And then once the investigator receives the respondent's position statement, they review the information and charging party has an opportunity to respond and provide any other additional information.
Abbey Brown:
I think often the respondent's position statement is shared with the charging party, but I'm not quite sure about that, how often that happens. I've had some conversations where I think that has happened and somewhere where it hasn't. So it may depend on the investigator, but the charging party can also submit documents and information as well.
Abbey Brown:
And throughout that process, the investigator may request additional information or documentation even after they've gotten your position statement. They even have the right to contact witnesses or take other investigative actions. But in our experience, we've basically just been seeing kind of a few follow-up questions are all that's typical, maybe a few more requests for particular documents.
Abbey Brown:
Sometimes we do see requests for an affidavit from a decision maker. But I've never had someone wanting to interview my witnesses directly. So importantly the new law keeps this investigation process in place, but it does allow individuals to cut the investigation short as John already mentioned.
Abbey Brown:
So as long as 60 days has passed since the charge was filed, the complainant is allowed to make a written request that the OCRC stop its investigation and issue the right to sue notice, which would then allow the individual to go straight into court. Okay, next stage is the probable cause determination.
Abbey Brown:
So assuming that the charging party does not cut short the investigation, the next stage after analysis of the arguments on both sides, there's going to be a determination as to probable cause. And the OCRC will issue a written recommendation as to whether it thinks there's been probable cause to believe that a violation of Ohio's civil rights laws has occurred.
Abbey Brown:
And at this point under the new law, the OCRC has to remind the charging party about their ability to cut the process short and go into court. So if the OCRC finds it's not probable, they're going to issue their decision. And then along with that issuance, there will be a notice of right to sue.
Abbey Brown:
Now, this is new. If the OCRC finds that it is probable, that discrimination has occurred, instead of just sort of automatically moving to the next stage within its own process, it's going to notify the complainant that he or she is permitted to withdraw the charge and file a lawsuit.
Abbey Brown:
And of course after that written determination is made, if either party does not agree with the recommendation that party can appeal the finding. There's a reconsideration process. And we don't see that too much.
Abbey Brown:
What we see in terms of if a charging party there was a determination that there was no probable cause, what we see is often a complainant or his attorney will sort of read the position statement or sort of see that really wasn't anything nefarious going on here.
Abbey Brown:
And lack of a better term, just kind of go away, realize what they thought happened really didn't happen. It was not the case that there was discrimination. Or if the charging party remains convinced that something unlawful happened, they do often go into court and sue.
Abbey Brown:
So we don't see that reconsideration process being taken advantage of too much by charging parties. But if the OCRC finds that it is probable, that discrimination has occurred and assuming that the charging party does not withdraw the charge, then the OCRC process continues. And the next stage is informal conciliation methods. So the parties are invited.
Abbey Brown:
It's a voluntary process. They're invited to participate in these discussions where both sides kind of work together to develop an appropriate remedy. So you don't have to agree to any particular remedy. It's basically the OCRC kind of attempting to negotiate a settlement between the parties and maybe all the charging party wants his or her job back, and maybe that's acceptable to the employer.
Abbey Brown:
Great, done, problem solved. But that doesn't always happen that you can come to an agreement like that. And when it does not happen, the parties they can't find a solution that they agree to. Then the next stage within the OCRC is the OCRC will issue and serve a complaint that notifies the parties that a hearing will be held in not less than 30 days.
Abbey Brown:
And that complaint has to be issued one year after the charge was filed, within one year after the charge was filed, which effectively means the OCRC has one year to investigate its charges. And remember, even at this stage, the charging party still does have the option of requesting the right to sue letter and asking the OCRC to dismiss the charge so he or she can go into court.
Abbey Brown:
The next stage is that a hearing would take place. And at the hearing, the attorney general represents the OCRC and the respondent has the right to file an answer to the complaint, appear in person or be represented by counsel. And both sides are allowed to call witnesses, examine and cross examine witnesses. And the presiding officer at that hearing is not bound by the rules of evidence.
Abbey Brown:
So he or she can take into account really any evidence that he or she deems credible and worthy of considering. So after a hearing, the OCRC would then issue an opinion that states its findings of fact and conclusions of law. And if the OCRC finds the respondent has not engaged in unlawful discriminatory practice, the complaint would be dismissed.
Abbey Brown:
If they find the respondent has engaged in that kind of discrimination, it can issue various orders as well as awards. So for example, they can order a cease and desist or order back-pay reinstatement, things like that. It can also order the respondent to kind of periodically provide updates or written reports to the OCRC demonstrating that the employer still is in compliance with the order.
Abbey Brown:
Okay, next and this is new. I wanted to touch on the continuing role for the OCRC. The OCRC's involvement in cases was pretty previously limited to the agency proceeding itself at the OCRC or involvement in a case where it determined it had probable cause to believe that a violation of law existed.
Abbey Brown:
And the new law clarifies that the OCRC can actually continue to offer assistance to an individual after issuing the notice of right to sue. And it also permits the OCRC to intervene in a lawsuit alleging an unlawful discriminatory employment practice if it deems the case of public importance.
Abbey Brown:
So, we don't yet know how or how often the OCRC is going to want to exercise this new power, but it will definitely be interesting to watch. Okay, onto more fun, age discrimination claims. Hopefully now these will be a little less painful or less ridiculous in Ohio.
Abbey Brown:
So though many of you who do this for a living I'm sure are familiar with just what an absolute mess age discrimination claims in Ohio have been historically. And now this is mostly cleaned up, not quite, but almost. So previously there were three separate ways to file an age discrimination claim in Ohio with differing statutes of limitation.
Abbey Brown:
So we had number one, you could bring a lawsuit based on the general prohibition against unlawful discriminatory practices based on age. And that had to be filed within 180 days. That was based on 4112.02(L) which has now been repealed with this new law.
Abbey Brown:
So that way is gone. Number two, you could bring a general lawsuits alleging any violation of the civil rights law, which was then subject to a six year statute of limitations. And that was based off of, John mentioned this, 4112.99. The new law literally adds the phrase, a person is prohibited from bringing a civil action for employment under this section.
Abbey Brown:
So that's gone now. Okay, and now the surviving way to bring an age discrimination is number three. And bear with me here because there's actually technically still two different ways to do this. But number three, you can bring a lawsuit based on the specific prohibition against employment discrimination based on age, which was previously subject to the six year statute of limitations but now it's just a two year statute of limitations.
Abbey Brown:
So strangely, you can still go through 4112.14(B), or you can go through 4112.052. And each of those provisions says, you can't do both. You have to choose one. If you choose one, the other option is foreclosed to you. But they really are functionally almost identical. It would have been nice if the legislature had just actually cleaned this up and they got so close.
Abbey Brown:
But they didn't quite simplify it all the way. But under either avenue, it's really the exact same process. So it's the process you want to remember, and it's also the exact same remedies. So 4112.14, under my readings, sort of seems a little less friendly for plaintiffs, I think because it states there's no cause of action available in the case of discharges where the employee has available to the employee, the opportunity to arbitrate the discharge, or where the discharge has been arbitrated and found to be for just cause.
Abbey Brown:
So that same provision about arbitration does not appear in 4112.052. But otherwise they are basically equivalent. So in any case, I find that interesting, but in the end, I don't know that it's really going to matter too much.
Abbey Brown:
Because while the law still does have those two provisions through which an employee could bring an age discrimination claim, there really just is now one process. And the law is very clear that under either of those provisions, both the exhaustion of the OCRC procedures requirement applies to both, and then also the two year statute of limitations applies.
Abbey Brown:
So this is a major improvement. It is much, much less messy, so that is a good thing. Okay, for our final topic today, let's about remedies. So the new law now specifically includes employment discrimination lawsuits in the definition of a tort action under the trial procedure law, which is revised code 2315.
Abbey Brown:
And this codifies what was generally assumed already to be the law. But again, this is just some nice clarity where things were kind of previously a little bit fuzzy. So discrimination actions are now defined as tort actions, the tort reform rules now apply to Ohio employment discrimination claims.
Abbey Brown:
So that means there are no limits on compensatory damages. A plaintiff can seek to recover for his or her economic losses. And just as a quick refresher, economic losses include things like wages, salary, any kind of compensation or not always applicable in our employment discrimination cases, but medical care, treatment, things like that.
Abbey Brown:
Okay, second kind of new rule here that definitely applies, there is now a limit on compensatory damages for the plaintiff's non-economic loss. And remember non-economic loss are things like pain and suffering, loss of consortium, mental anguish. So what is that limit?
Abbey Brown:
It is those damages cannot exceed the greater of either $250,000 or 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 this, again, doesn't usually come up in an employment discrimination case.
Abbey Brown:
The limitation on damages for non-economic loss does not apply in a tort action if the plaintiff suffers permanent or substantial physical deformity and things like that, loss of a limb or something like that. And then three, these claims are now definitely subject to caps on punitive damages.
Abbey Brown:
So 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 employers or an individual's net worth to a maximum of $350,000. And again, the caveat there being that purposely or that knowingly.
Abbey Brown:
So that limitation on punitive does not apply if the defendant committed the tort purposely or knowingly. And John and I have been talking about that, well, what does that mean? The law sets forth the definition of those terms is pulled from the criminal code.
Abbey Brown:
So that is sort of interesting there. We'll have to see how the law develops around those definitions. Okay, so those are the big changes to the Ohio civil rights law. Let me stop sharing my screen here. They're definitely big changes, but as we mentioned, I think very welcome.
John Cernelich:
Yeah, thank you, Abbey. Yeah, the goal here obviously was to streamline this process and to have everything really run through the OCRC. One of the questions was, so will there no longer be a need for election of remedies? And I think Abbey pointed out that there still are two different statutes covering age discrimination.
John Cernelich:
So technically you can elect one or the other. I think they both kind of get you in the same place, but that is an election of remedies there. Otherwise, you did have people electing either to go previously or right now before April to the OCRC or to go directly into court with an attorney under 4112.99.
John Cernelich:
That won't be available. So generally there won't be an election of remedies, but for perhaps that age discrimination situation. And even there, you have to go through the OCRC first. Another question, does 4112.054 apply to men? And I've made reference to she or women throughout that.
John Cernelich:
That has to do with the affirmative defense, right, as to sexual harassment, hostile work environment sexual harassment. Does it apply to men? And the answer is yes. So if a male is subject to sexual harassment, there is that affirmative defense available as well if the employer has shown that commitment to avoid workplace harassment based on sex and the individual didn't take advantage for instance of reporting mechanisms.
John Cernelich:
That applies to both men and women. Another question, can ignoring discriminatory practices be considered aiding? Can that be considered aiding? I think that's a good question. And I think the answer is yes. Think of the instance where, and we've heard about cases like this, where there's a workplace where an individual supervisor or even an owner of a company or what have you, harasses women, harasses employees.
John Cernelich:
And the HR person, for instance, is aware of that and does nothing. Those are very troubling situations, but there could be an argument that that is aiding to the extent that in essence it has been allowed to go on. I'll just point out that again, that carve out for aiding discrimination is problematic.
John Cernelich:
I mean, I just don't like that there, because the way it's written, you can argue the exception again, swallows the rule. I am hopeful that the OCRC will address this specifically when it issues its regulations, which it has to do under this new law. So I would hope that specifically is addressed and we have some specific guidance there.
John Cernelich:
Another question, does the language of ORC 4112.08 bar a staffing labor provider client from being sued by the temporary employee directly? That's an interesting question, and I think the answer is no. I think, look what comes down to when it comes to staffing agencies being sued, comes down to the concept of joint employment, right?
John Cernelich:
So let's say you have a tally girl working in your work environment. She comes from a staffing agency, she does clerical work, filing, or what have you. And typically the staffing agency handles payroll, handles benefits, but the day-to-day work assignments are from the client from that onsite employer. Let's say that that woman suffers sexual harassment.
John Cernelich:
She will claim that both of the employers, both of the entities, the staffing agency and the site's employer are her employers for purposes of 4112. And it comes down to the law of joint employment. And typically courts would look at who has control of individuals, who handles their day to day situations.
John Cernelich:
The staffing agency may be more vulnerable to the extent that the staffing agency got complaints from the employee about her environment and she did nothing. So that's going to be a function of these joint employment rules and not really a function of anything that's gone on in terms of the modification of this statute. Abby, do you see more questions there?
Abbey Brown:
Yeah, I'll take the one about punitive damages here. The question is, for punitive damages, is it knowingly commits the act in general or knowingly commits a discriminatory act? I think it's definitely not just knowingly committing the act because obviously if you're terminating someone, you know you're terminating them.
Abbey Brown:
It's knowingly engaging in the discrimination. But as we said, this is going to be a bit of a tricky question. I think we're going to see some interesting case law on it. What does that knowingly or purposely mean when it comes to discrimination?
Abbey Brown:
Because by its very nature, I think most discrimination is done, unless there's an element of implicit bias or something like that. It seems to incorporate a bit of intentionality to it. So I would say it's not exactly clear what those terms mean.
Abbey Brown:
But yeah, it would be more knowingly or purposely committing in a discriminatory act, not just the action that's being complained of. Hope that answers your question.
John Cernelich:
One thing I'll mention in terms of takeaways folks, because this affirmative defense for sexual harassment, hostile work environment sexual harassment has been codified. I know a lot of people already have policies out there and have done some training, but I would make an action item right now to double down on this, to maybe re-promulgated that policy to make sure it's kind of state-of-the-art.
John Cernelich:
One of the things you want to see in a policy for instance, is that if a person believes he or she's a victim of sexual harassment, that they, of course don't have to complain just directly to their supervisor, who may be the source of that harassment. That they can do an end around and go to HR or go to any member of management.
John Cernelich:
There's things like that you absolutely want. If you have offsite employees, you want to make sure that they have access and that it may make sense to implement a helpline. If you have facilities where there's no onsite HR, you might want to implement that helpline because again, for this affirmative defense, they're going to want to review what your preventive actions were and what your commitment was.
John Cernelich:
So you, I think, really want to double down on that and most practically engage in training. Conduct training of your supervisors, your frontline people specifically focusing on discriminatory harassment. The statute mentions as affirmative defense, sexual harassment.
John Cernelich:
I was hoping it would say any kind of harassment, racial harassment, national origin, or what have you. I always argue in our cases that the same affirmative defense Supreme Court gave us under Faragher and Ellerth applies to any type of harassment. The statute here only specifically references sexual harassment.
John Cernelich:
But we certainly will make arguments that the same affirmative defense should be available for any types of harassment. But again, in terms of action items, I would absolutely put that front and center. And we have partnered with our clients in these presentations, with HR professionals. We've conducted them.
John Cernelich:
I do think it makes some sense to conduct these and keep a clear record, sign-in sheets, the materials so that OCRC investigator can look at the materials, particularly a judge or a jury. So anyhow, that to me is kind of number one, when it comes to preventive actions and things you can do today.
John Cernelich:
The other thing again, to consider is this record retention issue. We typically have recommended at least six years because of the former statute of limitations here. I think now the outside limitations period I can think about for employment actions is three years, right for those willful FLSA violations for wage and hour.
John Cernelich:
So you want to hold on to personnel records at least three years, employment contracts, breach of contract actions for an express written contract that's eight years. So if you have a lot of employment agreements and what have you, you certainly want to hold on to those for at least eight years. We can talk to you about record retention.
John Cernelich:
There's kind of a patchwork of laws there. Kind of the general umbrella was six years before, but now it may be more like three or four years. We want to look at some of your welfare plans and see what they require, but that's an area that certainly can be revisited now as well in terms of action items. And we're happy to talk to you about that. So anything else Abbey, or you have any more new question?
Abbey Brown:
Yeah, I see a question here suggesting, could it be that by writing that that J exception as in terms of an individual liability for managers and supervisors, could it be that the legislature was intending to limit an individual's liability to his or her own conduct as opposed to being liable as the employer for all conduct? I think that that's logical. That makes sense to me. That probably was the intent.
John Cernelich:
Yeah, like I say, this administrative code I'm looking forward to it because it's going to fill in some of the gaps here. Again, remember they issue probable cause. Do they have to go to court that day? Because again, it's no longer pending with the OCRC.
John Cernelich:
That's where the administrative regulations probably will provide a reasonable period of time for the individual to proceed to court. So we're looking forward to that. Of course, when we get some of the information like that, we'll share it with you. If you have any questions or comments, feel free to call us.
John Cernelich:
And I think with that, Abbey, I think we have everything. We really appreciate everybody joining us here this morning. We have a wonderful group of clients and friends, and we appreciate your commitment to getting this information and then to using it so that we can avoid these workplace issues consistent with everybody's commitment to avoid discrimination in the workplace. So thank you very much for joining us this morning.