On January 12, 2021, Ohio Governor Mike DeWine signed into law HB 352, the Employment Law Uniformity Act (the "Act"), which takes effect April 12, 2021. The Act creates a new framework for claims brought under the Ohio Civil Rights Act, the state's workplace anti-discrimination, anti-harassment and anti-retaliation statute.
The Act eliminates certain idiosyncrasies within the Ohio Civil Rights Act relating to discrimination claims and codifies a defense to harassment claims that emerged in Ohio court decisions. The Act harmonizes elements of Ohio's statutory scheme to be more in line with its federal counterpart, Title VII. The Act also confirms that Ohio's caps on tort damages apply to employment law claims. In sum, the Act is expected to encourage the early resolution of disputes, give employers greater certainty about their potential risks of liability, and reduce the costs of litigating claims brought under the Ohio Civil Rights Act.
Examples of the significant changes coming in April 2021 are discussed below.
Exhaustion of Administrative Remedies
With limited exceptions, individuals planning to file a lawsuit under the Ohio Civil Rights Act will need to exhaust their administrative remedies first by filing a charge with, and then getting a notice of right to sue from, the Ohio Civil Rights Commission (OCRC). Only if an individual dual files their charge with, and obtains a right to sue notice from, the Equal Employment Opportunity Commission, or pursues solely injunctive relief, will they be able to bypass the OCRC and proceed straight to court.
New procedures will apply at the OCRC. For example, if a charge has been pending at the OCRC for at least 60 days, the charging party will have the right to request an immediate right to sue notice, effectively ending the OCRC's preliminary investigation of the allegations.
The Act also outlines the OCRC's role in fostering the resolution of charges at the agency stage. By way of example, the parties may elect to mediate the charge at the OCRC, avoiding the need for litigation entirely.
Statute of Limitations
As a result of the Act, individuals who believe they have suffered an unlawful employment action will have significantly less time to pursue a claim in court. The Act cuts down the window of time to file a lawsuit under the Ohio Civil Rights Act from six years to two years from the date of the alleged unlawful event. This shorter statute of limitations period may prompt employers to revisit their record retention practices for employee files.
Notably, the Act gives individuals more time to file a charge with the OCRC. Rather than the current 180-day period for filing a charge with the OCRC, individuals will have two years from the date of an alleged unlawful act to file a charge. The statute of limitations period to file a lawsuit under the Ohio Civil Rights Act is tolled while a charge is pending at the OCRC.
Age Discrimination Claims
It has been a quirk of Ohio law that a distinct set of procedures apply to age discrimination claims. Litigants have had multiple avenues for pursuing age claims, each with their own procedures and remedies. The Act eliminates the provisions of the Ohio statute that were unique to age discrimination claims. Accordingly, age claims will be subject to the same procedures and remedies available for other protected classes under the Ohio Civil Rights Act.
Individual Liability of Supervisors
In 1999, the Ohio Supreme Court ruled in Genaro v. Central Transport, Inc. that individual supervisors could be held personally liable for employment discrimination or other violations of the Ohio Civil Rights Act. Since that ruling, supervisors and managers in Ohio have operated under the threat of being sued in their individual capacities.
The Act overrides the Genaro decision by narrowing significantly the circumstances under which individual liability may be available under the Ohio Civil Rights Act to claims for: (1) retaliation for opposing a discriminatory practice; (2) aiding a discriminatory practice; or (3) obstructing a person from complying with the Ohio Civil Rights Act.
The Act does not change the concept of vicarious liability under Ohio law. As under Title VII, employers may be found liable under the Ohio Civil Rights Act for the unlawful conduct of a supervisor.
Affirmative Defense to Sexual Harassment Claims Involving Supervisors
The Act codifies the Faragher-Ellerth defense—an affirmative defense that arose in Title VII case law—as applicable to sexual harassment claims under the Ohio Civil Rights Act. The defense gives employers an opportunity to avoid vicarious liability for unlawful sexual harassment committed by a supervisor in certain circumstances.
The Act sets forth the requirements to assert this defense. Consistent with the elements of this defense under Title VII, to escape liability under the Ohio Civil Rights Act for a supervisor's unlawful harassment, an employer must show that: (1) it exercised reasonable care to prevent or promptly correct any sexually harassing behavior of the supervisor; and (2) the employee bringing the claim failed to use the preventive or corrective opportunities that the employer provided or to avoid harm otherwise. As under federal law, the defense is not available if the harassing behavior resulted in a "tangible employment action" against the employee, such as a firing or demotion.
Recoverable Damages for Violations
The Act confirms that a plaintiff's recoverable damages under the Ohio Civil Rights Act are subject to Ohio's statutory caps on tort damages. Therefore, a plaintiff generally may not recover more than $250,000 or three times their economic losses, up to $350,000, in noneconomic damages (such as for emotional distress) and may not recover more than two times their compensatory damages or, if the employer is a "small employer" (100 or fewer employees), 10 percent of the employer's net worth, up to $350,000, in punitive damages. The Act makes no changes to a plaintiff's ability to recover economic damages (such as back pay) and attorneys' fees for violations of the Ohio Civil Rights Act.
Exclusivity of Relief for Unlawful Employment Practices
The Act makes clear that, when it comes to employment claims under state law, the Ohio Civil Rights Act provides the sole and exclusive relief. Therefore, common-law claims of wrongful discharge or sexual harassment will no longer be viable under Ohio law.
What This Means for Employers
After a year of turmoil and unpredictability, the Employment Law Uniformity Act provides some welcome certainty to the Ohio business community in 2021.
Ohio employers may want to take a fresh look at their employment policies and practices in light of the broad scope of changes to Ohio law. The Act underscores the need for all Ohio employers to maintain robust policies against workplace discrimination, harassment and retaliation, and to ensure that those policies are known to employees and enforced.
Likewise, amid all the changes wrought in the workplace by the COVID-19 pandemic, including a shift to remote work and the potential for blurred lines between employees' personal and professional lives, this is an especially opportune time for employers to train employees and supervisors on workplace policies. By way of example, supervisors should understand the role they play in reporting potential violations of their employer's anti-harassment and anti-discrimination policies and their responsibility to not engage in conduct that could be viewed as retaliatory against someone who has raised a concern.
Ohio employers should expect an uptick in charges filed at the OCRC given the new requirement for individuals to exhaust their administrative remedies with the agency. As compared to filing a lawsuit, it is easier for an employee to file a charge at the OCRC, where the agency can provide assistance and the employee will not need their own lawyer. However, this change ultimately may reduce employers' defense costs in any particular matter, given that parties have the opportunity to resolve a charge informally at the OCRC and fend off the expensive, time-consuming process of litigation.
For More Information
If you have any questions about this Alert, please contact Eve I. Klein, Kathryn R. Brown, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.