NEW OHIO LAW GOVERNING DISCRIMINATION CLAIMS LIMITS POTENTIAL EMPLOYER LIABILITY

NEW OHIO LAW GOVERNING DISCRIMINATION CLAIMS LIMITS POTENTIAL EMPLOYER LIABILITY

On January 12, 2021 Ohio Governor Mike DeWine signed into law H.B. 352, which significantly changes the procedures and time limits for filing discrimination claims under Ohio law. The new bill, known as the Employment Law Uniformity Act, goes into effect April 15, 2021 and provides more clarity and consistency compared to the current statutory scheme. More importantly, the Act is very favorable to employers as it limits the time frame for employees to file such claims and requires claimants to first exhaust administrative remedies through the Ohio Civil Rights Commission (“OCRC”) before proceeding to court. These and other reforms in the Act should help to limit employers’ potential liability under Ohio’s anti-discrimination statute.

The key reforms in H.B. 352 are described below.

Reduction in Statute of Limitations

           Under current Ohio law, claims under Ohio’s anti-discrimination statute (Ohio Revised Code Chapter 4112) must be filed within six years, an extremely long limitations period. H.B. 352 reduces the applicable statute of limitations to only two years. The two-year limitations period is tolled while the employee’s claim is pending before the OCRC. The shortened limitations period should reduce the number of claims for employers and their insurance carriers, thus limiting potential risk.

 Initial Filing Through Ohio Civil Rights Commission

           Prior to the enactment of H.B. 352, a claimant had the option to file an administrative charge of employment discrimination, harassment, or retaliation through the OCRC or to directly file a lawsuit in the Court of Common Pleas. This procedure differed from the requirements for filing a federal claim of discrimination under Title VII, which require the aggrieved employee to first file a claim through the Equal Employment Opportunity Commission (“EEOC”) and obtain a right-to-sue letter. This exhaustion of administrative remedies requirement under the federal scheme results in fewer lawsuits as claimants often do not pursue their claims after an initial dismissal by the EEOC.

         H.B. 352 now mirrors the federal scheme by requiring claimants to first file a charge with the OCRC before proceeding to court. A lawsuit cannot be initiated until the OCRC issues a right-to-sue notice or more than 45 days have passed without the issuance of the right-to-sue notice after a request from the claimant (which can occur 60 days after the filing of a charge). The OCRC charge must be filed within 2 years rather than the previous 180-day limitations period. The defense of an OCRC charge is far less expensive than defending a lawsuit, and OCRC proceedings are much faster than protracted lawsuits which can take years to resolve.

Liability of Individual Supervisors

         Under federal law, individual supervisors and managers cannot be held personally liable under Title VII for workplace discrimination. However, based on the 1999 decision from the Ohio Supreme Court in Genaro v. Central Transport, Inc., individual supervisors and managers could be subject to liability under Ohio Revised Code Chapter 4112 in addition to the employer.

         The Employment Law Uniformity Act changes Ohio law and prohibits personal liability of supervisors and managers if they are acting in the scope of their employment (unless the supervisor is the employer). However, supervisors and managers may still be held liable if they acted outside the scope of their employment or violated other statutory or common law requirements outside of Chapter 4112. This change will allow supervisors to exercise sound business judgment in making employment decisions with less fear of potential individual liability.

Reliance on Affirmative Defense in Sexual Harassment Cases

          Based on U.S. Supreme Court precedent, employers defending federal claims for sexual harassment are entitled in certain cases to raise an affirmative defense that they took reasonable care to prevent such harassment (typically through written anti-harassment policies) and the employee unreasonably failed to take advantage of such preventative measures offered by the employer or to otherwise avoid harm. However, Ohio’s anti-discrimination statute did not include the affirmative defense.

          H.B. 352 now provides employers with the opportunity to assert this affirmative defense. The Act sets forth exceptions if the employee can establish that taking corrective or preventative action would have failed or been futile. In addition, the defense is not available if the alleged harassment resulted in a tangible employment action against the employee such as termination, demotion, or failure to promote. Accordingly, defense counsel should include the affirmative defense in their initial pleadings on behalf of employers when defending any claims based on workplace harassment.  

Procedures for Filing Age Discrimination Claims  

          Ohio’s current statutory scheme for asserting age discrimination claims differs from the procedures for other types of discrimination claims and is complicated and confusing. H.B. 352 eliminates this longstanding confusion by treating age discrimination claims in the same manner as other discrimination claims. Thus, age discrimination claims under Ohio law are now subject to the two-year statute of limitations as well as the administrative exhaustion requirement using the initial OCRC charge process.

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          H.B. 352 will have a significant impact on future litigation involving employment discrimination under Ohio law. The new law provides greater clarity and consistency with federal law which will benefit all litigants. But these reforms will be particularly beneficial to Ohio employers and their insurance carriers as they will undoubtedly reduce overall litigation expenses and limit potential liability for both employers and individual supervisors.

Should you have questions or comments regarding H.B. 352 or other employment law issues, please contact our office.