Ohio Simplifies Employment Discrimination Laws

On January 12, 2021, Ohio Governor DeWine signed the Ohio Employment Law Uniformity Act, which significantly amended Ohio's employment discrimination statutes, contained largely in R.C. 4112.  The changes are set to go into effect April 15, 2021.  The changes include:

1. Administrative Exhaustion.  Employees will now be required to file a charge with the Ohio Civil Rights Commission (OCRC) before filing a claim in state court.  Before filing a lawsuit, a plaintiff must either obtain a notice of right to sue from the OCRC, allow 45 days to elapse after requesting a notice of right to sue if no notice is issued, or receive a determination of probable cause of discrimination from the OCRC.  These are not required, however, if the person seeks only injunctive relief or has obtained a notice of right to sue from the EEOC based on the same underlying facts.  This requirement mirrors what is currently required to file a federal employment discrimination claim.
2. Statute of Limitations.  The statute of limitations for filing a claim will be reduced from six years to two years.  The time for filing a charge with the OCRC will also be extended to two years, recognizing the exhaustion requirement.  If charges are filed with the OCRC less than 60 days before the expiration of the limitations period, then the limitations period will be tolled for an additional 60 days after the charge is no longer pending with the OCRC.  The two-year statute of limitations includes claims for age discrimination, which previously were subject to two separate limitations periods.  The two-year statute of limitations also applies to violations of federal employment discrimination law brought in Ohio courts.
3. Age Discrimination Claims.  Plaintiffs filing claims for age discrimination may either file an employment lawsuit, under the procedures for other discrimination claims or under the continuing statute prohibiting age discrimination specifically.  The latter option is not available, however, if the employee has the opportunity to arbitrate the discharge or the employee has already arbitrated the discharge and the discharge was found to be for just cause.
4. Curtailed Supervisor Liability.  The ability to bring a lawsuit against a manager or supervisor in their individual capacity has been significantly limited.  Such liability is now limited for supervisors who are themselves the employer (rather than simply a person acting in the interest of the employer), or they engage in retaliation for opposing a discriminatory practice, aiding a discriminatory practice, or obstructing a person from complying with the Ohio Civil Rights Law.  The statute intends to supersede Ohio Supreme Court caselaw holding that supervisors can be held jointly or individually liable with the employer.
5. Affirmative Defense to Hostile Workplace Environment Claims.  The law now incorporates into state law the affirmative defense against harassment set forth by the United States Supreme Court in Farragher-Ellerth.  Now, employers will not be eligible for a hostile work environment through sexually harassing behavior if:  (1) the employer exercised reasonable care to prevent or promptly correct any harassment; and (2) the employee failed to take advantage of any preventive or corrective opportunities.  The affirmative defense is not available, however, if a supervisor's harassment resulted in a tangible employment action against the employee making the allegation.
6. Tort Reform.  Employment claims have been expressly incorporated into Ohio tort laws setting forth various damages caps.  Compensatory damages for noneconomic loss are now limited to the greater of $250,000 or three times the economic loss, for a total maximum of $350,000 for each plaintiff and $500,000 for each occurrence.  Punitive damages cannot exceed two times the amount of compensatory damages or 10 percent of a small employer's or individual's net worth, for a maximum of $350,000.  The punitive damages limitation does not apply if the defendant acted "purposely" or "knowingly."
7. Exclusive Remedy.  The statute now makes clear that the remedies set forth in R.C. 4112 are the sole remedy available for unlawful discriminatory practices relating to employment.

As mentioned above, the changes to the law go into effect April 15, 2021. Hopefully, the new regime will simplify the process for both employees bringing claims and employers defending claims. Employers with questions about how these changes affect their business and workforce are encouraged to contact counsel.