As a continuation of the Faruki PLL series on some of the risks relating to employee departures and highlighting employer's options regarding minimizing those risks, this second part introduces the federal, state, and a few local equal employment opportunity laws.
While Ohio is an employment-at-will state, the federal, state, and local equal employment opportunity laws limit an employer's right to terminate an employee at will. Employers should stay up to date on these equal employment opportunity laws because some federal, state, or local laws may be more restrictive than others.
Federal Equal Employment Opportunity Laws
The federal equal employment opportunity laws prohibit an employer from discriminating against an employee throughout employment, including at termination, based on certain protected characteristics or classes. The following list includes federal equal employment opportunity laws that employers should be familiar with:
- Age Discrimination in Employment Act of 1967 ("ADEA"): For employers with 20 or more employees, the ADEA prohibits discrimination against individuals aged 40 years old or older.
- Americans with Disabilities Act of 1990 ("ADA"): For employers with 15 or more employees, the ADA prohibits discrimination against individuals with recognized disabilities, or individuals that are otherwise "regarded as" disabled by their employer.
- Genetic Information Nondiscrimination Act ("GINA"): For employers with 15 or more employees, the GINA prohibits discrimination against employees relating to their genetic information.
- Immigration Reform and Control Act ("IRCA"): For employers with 4 to 14 employees, the IRCA prohibits discrimination against employees relating to their citizenship or immigration status.
- Pregnancy Discrimination Act ("PDA"): For employers with 15 or more employees, the PDA prohibits discrimination against a woman due to pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
- Title VII of the Civil Rights Act of 1964 ("Title VII"): For employers with 15 or more employees, Title VII prohibits discrimination on the basis of race, color, religion, sex (including sexual orientation and gender identity), and National Origin.
- Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"): For employers with 1 or more employees, the USERRA prohibits employers from discriminating against employees who are past, current, or future members of the United States Armed Forces.
Damages for non-compliance with these laws include reinstatement, back pay, retroactive seniority status, other monetary penalties, attorneys' fees, and potentially injunctive relief (court orders requiring an employer to take particular actions). Further, for willful violations of the ADEA or the USERRA, the employee may also be able to recover liquidated damages.
State Equal Employment Opportunity Laws
The Ohio Civil Rights Act of 1959 ("Ohio Civil Rights Act") prohibits an employer with four or more employees from discriminating against employees on the basis of their race, color, religion, sex, military status, national origin, disability, age, or ancestry.
As an Ohio employer has to comply with the most restrictive law applicable to it, all Ohio employers with four or more employees are prohibited from terminating an individual on the basis of their race, color, religion, sex, military status, national origin, disability, pregnancy, age, or ancestry.
Damages for non-compliance with the Ohio Civil Rights Act include injunctive relief, monetary damages, back pay, and attorneys' fees.
Local Equal Employment Opportunity Laws
Some Ohio localities have their own form of equal employment and opportunity laws. In Cincinnati, employers with ten or more employees are prohibited from discriminating against employees based on the employee's race, natural hair types and styles commonly associated with race, gender, age, color, religion, disability, marital status, sexual orientation or transgender status, or ethnic, national or Appalachian regional origin. Penalties for noncompliance include a $100 daily fine up to $1,000 total. Continued noncompliance can result in a misdemeanor charge.
In Dayton, employers with four or more employees are prohibited from discriminating against employees on the basis of race, color, religion, sex, sexual orientation, pregnancy, gender identity, national origin, place of birth, age, marital status, familial status, or disability. Employers that run afoul are subject to a hearing, followed by a cease and desist letter. Failure to comply with the cease and desist letter may expose the employer to a misdemeanor.
Compliance with the Equal Employment Opportunity Laws
The understanding of applicable equal employment opportunity laws is only the tip of the iceberg of the legal issues surrounding involuntary termination of an employee. Below are the top 5 things, to be discussed more thoroughly later in the blog series, that employers should consider to protect themselves from employment discrimination lawsuits pursuant to the equal employment opportunity laws:
1. Develop and Implement Clear Policies
Employers should draft clear policies stating what types of behavior shall be the basis of termination. Clear policies are crucial for employers to cite when defending a discrimination suit; employers can point to the termination policies to prove the employee was fired for violation of the policy and not for other reasons. These policies should include an anti-harassment policy. Anti-harassment policies help employers defend their termination decisions based on an employee engaging in harassment.
2. Consistently Apply the Policies
Once a termination policy is created, employers should apply that policy to all employees consistently. Employers that do not apply the termination policy consistently risk exposure to accusations that the employer applied the policy in a discriminatory manner.
3. Train Managers, Supervisors, and Other Decisionmakers
Managers, supervisors, and other decisionmakers should undergo regular training regarding the equal employment opportunity laws and how to communicate with legal and human resources regarding potential termination decisions. Effectively trained higher-level employees are the first line of defense for employers to mitigate the risk of potential discrimination lawsuits.
4. Document Reasons for Termination
Documentation is a key asset for defending discrimination lawsuits. Documentation will help employers establish the nondiscriminatory reason for the termination. Employers should consider documenting the following:
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- Disciplinary decisions;
- Written performance evaluations;
- Emails showing dissatisfaction of the employees' work performance; and
- Minutes of management meetings discussing the termination.
5. Consider a Waiver or Release of Claims
Once the termination takes place, employers should consider implementing a severance or separation agreement that includes an explicit waiver and release of legal claims for adequate consideration. This agreement should be drafted by counsel as there are many considerations, including tax issues, to take into account when presenting a former employee with this kind of agreement.
Watch this space for more advice relating to employment best practices in future posts in this space.
