Governor Mike DeWine has signed House Bill 352, the Employment Law Uniformity Act (the “Act”), which strikes an appropriate balance between protecting employees’ rights to challenge workplace discrimination and bringing much needed clarity to Ohio employers.
The need for legislation such as this arises from years of decisions from the Ohio Supreme Court which have interpreted Ohio Revised Code Section 4112 (Ohio’s anti-discrimination statute) expansively, so the purpose of the Act is to reconcile the guidance provided by the legislative and judicial branches in Ohio. The Act will be effective as of April 15, 2021. Below is a summary of the modifications relevant to Ohio employers.
Statute of Limitations
Current Ohio Law: Case law from the Ohio Supreme Court set a six-year statute of limitations on civil actions for workplace discrimination. In addition, individuals can simultaneously pursue administrative remedies with the Ohio Civil Rights Commission (“OCRC”) within the 180-day statute of limitations.
New Law: The Act sets forth a two-year statute of limitations for workplace discrimination in both civil and administrative actions. See below for further discussion of administrative remedies.
Requirement to Exhaust Administrative Remedies
Current Ohio Law: An individual may file a civil law suit and a charge with the OCRC simultaneously.
New Law: An individual cannot file a civil action unless a timely charge has been filed with the OCRC and the OCRC has either issued a right-to-sue notice, or more than 45 days have passed and no right-to-sue notice has been issued. The statute of limitations to file a civil claim will be paused (“tolled” in legalese) while the charge is being investigated by the OCRC.
Elimination of Individual Supervisor Liability
Current Ohio Law: Case law from the Ohio Supreme Court permitted a lawsuit to be brought against individual supervisors, in addition to the employer, for employment discrimination.
New Law: The Act sets forth that individual supervisors or managers cannot be held personally liable when the individual is acting within the scope of their employment and sound judgment is used. Note that supervisors will not be entitled to this protection if it is determined that a supervisor or manager acted outside of their scope of employment, was retaliatory, or engaged in discriminatory practices.
Affirmative Defense to Sexual Harassment Claims
Current Ohio Law: There is no codified affirmative defense for sexual harassment claims under Ohio law, but there is an affirmative defense available to employers for sexual harassment claims at the federal level (under Title VII).
New Law: An employer may raise an affirmative defense to liability on a hostile work environment sexual harassment claim brought by an employee, in which the hostile work environment was created by a supervisor with immediate or successively higher authority over the employee. A successful affirmative defense would bar the employee from succeeding on such claim. In order to invoke this defense, the employer must prove: (1) The employer exercised reasonable care to prevent or promptly correct a sexually harassing behavior; and (2) The employee alleging the hostile work environment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. Note that this affirmative defense is not available to an employer if the supervisor’s harassment resulted in a tangible employment action (i.e. hiring, firing, failing to promote, etc.) against the employee.
Current Ohio Law: Age discrimination claims can be pursued under multiple statutory alternatives, each with different remedies and procedural requirements.
New Law: The Act streamlines Ohio’s age discrimination statutes and aligns the procedural requirement for filing age discrimination claims with all other protected classes. Furthermore, this means that age discrimination claims are subject to a two-year statute of limitations and that the employee must first exhaust administrative remedies.
Damages Cap for Discrimination Claims
Current Ohio Law: No codified cap on compensatory or punitive damages for discrimination claims.
New Law: The Act expands the definition of “tort action” to include discrimination claims within the statutory definition, meaning that discrimination claims are now subject to the damage caps specified under Ohio tort law.
The Employment Law Uniformity Act generally aligns with current federal law, and will bring clarity and simplicity to Ohio employment law. It is imperative that Ohio employers understand how this legislation could affect their business. The Employment and Labor Law attorneys at Critchfield are prepared to assist all employers with any questions that may arise.