The Ohio General Assembly recently overhauled its employment discrimination laws and adopted several employer-friendly provisions. Governor Mike DeWine signed the Employment Law Uniformity Act (also known as House Bill 352) on January 12, 2021, and it will become effective on April 15.
The Ohio Chamber of Commerce lobbied successfully to include several provisions, some of which respond to Ohio Supreme Court decisions that had expanded the reach of the state’s employment discrimination laws.
Limitation on supervisor liability. Under Ohio’s prior employment discrimination laws, the Ohio Supreme Court allowed substantial liability to be imposed on managers and supervisors. The Act largely eliminates individual liability for managers and supervisors, except where they either act outside the scope of their employment or retaliate or discriminate against the employee.
Limitation on damages. The Act redefines tort (wrongful act) claims to include employment discrimination claims brought under Sections 4112.052 and 4112.14 of the Ohio Revised Code. The effect will be to make such claims subject to both the statutory limitations on compensatory damages for noneconomic loss and the statutory procedures and limitations applicable to claims for punitive damages.
Requirement to file with the OCRC. The Act prevents employees from filing an employment discrimination lawsuit that seeks damages until they have first exhausted their administrative remedies by filing a charge with the Ohio Civil Rights Commission (OCRC). They must file an OCRC charge within 2 years after the alleged violation occurred.
The Act sets forth special hearing procedures and remedies for the OCRC to follow when handling such charges. The General Assembly stated its intent is that “human resource professionals should have the first opportunity to resolve personnel complaints and rectify detrimental workplace behavior before such issues result in costly litigation.”
The Act does allow employees to avoid the requirement to file a charge with the OCRC if they file an employment discrimination lawsuit solely to seek injunctive relief.
Statute of limitations. The prior version of Chapter 4112 of the Revised Code didn’t contain a statute of limitations. The Ohio Supreme Court had previously held a 6-year statute of limitations applies to employment discrimination lawsuits. The revised law lowers the statute of limitations from 6 years to 2 years.
Hostile work environment defense. The Act adopts and incorporates an affirmative defense to hostile work environment claims that was recognized by the United States Supreme Court in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. The General Assembly stated its intent is to encourage employers “to implement meaningful antidiscrimination policies and foster a work environment that is fair and tolerant.”
Employers won’t be held liable for employment discrimination claims based on an alleged hostile work environment if all of the following are true:
- The employer had robust antidiscrimination policies;
- It properly trained employees on appropriate workplace behavior and complaint procedures;
- It exercised reasonable care to prevent or correct harassment in the workplace; and
- The employee failed to take advantage of the employer’s complaint procedures or other opportunities to prevent or correct the alleged harassment.
The defense won’t apply if the employee can show it would have been futile to invoke the employer’s policies and procedures, or that preventive or corrective action was unavailable.
Limitation on wrongful discharge claims. Some employment discrimination lawsuits include common law claims for wrongful discharge. The General Assembly stated its intent in enacting House Bill 352 is that “common law claims for wrongful discharge are not available for actions maintainable under Chapter 4112 of the Revised Code and that the procedures and remedies set forth in Chapter 4112 of the Revised Code are the sole and exclusive procedures and remedies available under state law for claims of unlawful discriminatory practice relating to employment that are governed by that chapter.” Wrongful discharge claims based on violations of public policy would still be cognizable, however.
Ohio employers are expected to benefit from many of the changes made to the state’s employment discrimination laws, which will go into effect on April 15.