On January 12, 2021, Governor Mike DeWine signed the Ohio Employment Law Uniformity Act, which goes into effect April 15, 2021. This new law makes sweeping changes to Ohio's unemployment discrimination laws.
Statute of Limitations and Exhaustion of Administrative Remedies
The new law includes a two-year, as opposed to the current six-year, limitations period on filing employment discrimination claims in court. However, under the new law, the current 180-day time limit on filing a chage with the Ohio Civil Rights Commission (OCRC) is expanded to two years. In addition, the new law provides that a charge of discrimination must be filed with the OCRC (or the EEOC), and the charging party must obtain a right to sue letter from the OCRC (or the EEOC) before filing such claims in court. This is a new requirement under Ohio law.
Claims Against Supervisors/ Managers
The new law removes "any person acting directly or indirectly in the interest of an employer" from the statutory definition of "employer". Instead, the new law defines "employer" as "the state, any political subdivision of the state, a person employing four or more persons within the state, and any agent of the state, political subdivision, or person." The new law also includes the following statement of intent: "The General Assembly...hereby declares its intent to supersede the effect of the holiding of the Ohio Supreme Court in Genaro v. Central Transport, Inc., 84 Ohio St.3d 293 (1999)," in which the Court ruled that individual supervisors or managers can be held personally liable for their own discriminatory actions. Thus, the new law provides that, "no person has a cause of action or claim based on an unlawful discriminatory practice relating to employment...against a supervisor, manager, or other employee of an employer unless that supervisor, manager, or other employee is the employer." R.C. 4112.08 (A).
Damage Caps Applicable to Tort Actions Apply in Employment Discrimination Cases
The new law amends R.C. 2315.21(A) to specifically include civil actions "based on an unlawful discriminatory practice relating to employment" within the definition of a "tort action". This means following provisions governing tort actions also apply when litigating employment discrimination claims under law:
- Requires bifurcation of compensatory and punitive damages at trial,
- Establishes statutory caps on compensatory damages for noneconomic injury,
- Establishes statutory caps on punitive damages, and
- Defines the legal standard for awarding punitive damages and establishes rules for admissible evidence relevant to punitive damages.
Ohio Civil Rights Commission Procedures
New R.C. 4112.051 includes substantial changes to the procedure and time periods for issuing merit determinations, case closure, notices of right to sue, complaints in the event of a probable cause determination, and expanded use of alternative dispute resolution. These changes are needed to enable the OCRC to investigate charges and to issue notices of right to sue according to the new law's requirements, including a two-year time limit on filing an OCRC charge and on filing a lawsuit in court.
As in the past, age discrimination remains prohibited by R.C. 4112.02 and by 4112.14, and plantiffs can still sue under either section, but not both. However, the remedies differ. Unlike the remedies available for other types of discrimination claims, R.C. 4112.14 continues to provide for a make whole remedy and for mandatory award of costs and reasonable attorneys' fees to a prevailing plaintiff.
This terms "tangible employment action" and "hostile work environment sexual harrassment claim" are defined in new R.C. 4112.054. The affirmative defense created by U.S. Supreme Court precedent is also included in R.C. 4112.054 as follows: "An employer may raise an affirmative defense to vicarious liability to an employee resulting from a hostile work environment sexual harassment claim in which the hostile work environment was created by a supervisor with immediate or successively higher authority over the employee, if the employer proves (1) it exercised reasonable care to prevent or promptly correct any sexually harassing behavior, and (2) the employee claiming hostile work environment unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Provided however, that this affirmative defense "is not available to an employer if the supervisor's harassment resulted in a tangible employment action against the employee." R.C. 4112.054.
Bostock v. Clayton County (U.S. Supreme Court 2020)
The new law makes no mention to the U.S. Supreme Court's decision in Bostock v. Clayton County, in which the Court ruled that employment discrimination based on sexual orientation, gender identity, or gender expression violates Title VII's prohibition on discrimination "because of an individual's sex." But, over the last four decades, Ohio courts have ruled that unless an Ohio statute specifically proves otherwise, the provisions of Ohio's unemployment discrimination laws have the same meaning as under federal law (Title VII, the ADEA, and the ADA).
Enactment of the Ohio Employment Law Uniformity Act, especially the Act's statutory definition of "hostile work environment sexual harassment claim" and related affirmative defense, creates incentive for employers to review and revise their EEO and harassment policies, as needed, and to train employees concerning hostile work environment claims, related investigation requirements, and applicable policies and procedures. Doing so will go a long way toward establishing the following two elements of the statutory affirmative defense: (1) the employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior, and (2) the employee claiming hostile work environment unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. R.C. 4112.054.
Please contact a member of our firm's Labor & Employment Law practice group for further information on the implications of this new law.