New Ohio Law Gives Protections to Employers in Discrimination Lawsuits

Dayton, Ohio,

On January 12, 2021, Governor Mike DeWine signed House Bill 352, the Employment Law Uniformity Act. The bill serves to provide additional protections for employers in disputes with their employees under Ohio’s anti-discrimination laws, Revised Code Chapter 4112.

The new law is effective on April 12, 2021 and will apply to state employment discrimination claims filed on or after that date.

Under the new law, an employee is required to begin a claim of employment discrimination with the Ohio Civil Rights Commission before filing a civil suit. Previously, proceeding with the OCRC was optional. The change in the law brings Ohio’s employment discrimination process more in line with the federal process, requiring an employee exhaust their administrative remedies prior to filing suit. The two exceptions to this are if an employee is only seeking injunctive relief (i.e., no monetary damages), or if they have already received a right-to-sue letter from the EEOC.

The new law also shortened the statute of limitations from six years—one of the longest in the country—to two years. There are some complicated tolling provisions because an employee also has two years to file a charge with the OCRC. Therefore, the statute of limitations is tolled as follows: (1) if the employee files a charge with the OCRC more than 60 days before the statute of limitations expires, it is tolled during the time the charge is pending; or (2) if the employee files a charge with the OCRC less than 60 days before the statute of limitations expires, it is tolled during the time the charge is pending with the OCRC plus an additional 60 days.

Individual liability for supervisors and managers is now generally excluded under the new law. The two exceptions are: (1) if the individual is the employer (e.g., sole proprietorship); or (2) the individual acted outside the scope of their employment.

The new law also codified two judicial rules. First, employment discrimination claims are now explicitly defined as “tort claims,” meaning they are subject to Ohio’s caps on damages. Second, the legislation codified what is known as the Faragher-Ellerth affirmative defense from federal case law. Under that defense, employers are not liable for discrimination if they can prove all of the following: (1) the employer maintained an anti-harassment policy and complaint procedure; (2) the employer trained its employees on the policies and complaint procedures; (3) the employer exercised reasonable care to prevent or promptly correct harassing behavior; and (4) the employee unreasonably failed to take advantage of any preventive or corrective opportunities. However, this defense is not available if the harassment resulted in a tangible employment action, such as termination or demotion, etc.

Finally, the legislation removed the confusing differentiation regarding the filing of age discrimination claims. Previously, age discrimination complaints were subject to different time limitations based on what relief was sought. Now, age discrimination is treated the same as other kinds of discrimination, and the same time limitations on filing apply.

For more information, contact attorney Genevieve Hoffman,.

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