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Review of new workplace discrimination action filing rules
SHERRY KARABIN
Legal News Reporter
Published: July 2, 2021
A new law overhauling Ohio’s procedures for filing workplace discrimination claims is getting mixed reactions from plaintiff and defense attorneys who practice labor and employment law in the state.
Signed into law by Ohio Gov. Mike DeWine in January 2021, House Bill 352, now known as the Employment Law Uniformity Act, took effect on April 15, lowering the statute of limitations for filing discrimination claims from six to two years and largely shielding managers and supervisors from personal liability.
The new law also requires plaintiffs to exhaust their administrative remedies by filing a charge of discrimination with the Ohio Civil Rights Commission (OCRC) before bringing a civil lawsuit.
Roetzel & Andress shareholder and management-side attorney Karen Adinolfi said the new law made “common sense changes” to the state’s previous rules, which diverged significantly from federal law.
“From the employer’s perspective the new law is a very positive change,” said Adinolfi, who focuses her practice on employment law matters. “The new law more accurately mirrors federal law.
“For example, if an employee were to bring a discrimination claim under a federal anti-discrimination statute the individual would have to go before the Equal Employment Opportunity Commission (EEOC) first,” said Adinolfi. “The Ohio Civil Rights Commission has now taken on the role of the EEOC with respect to claims filed under Ohio’s anti-discrimination statute.
“Under the new law, a plaintiff may only file a lawsuit in court after the OCRC has issued a right-to-sue notice; if the charging party has requested a right-to-sue notice and the OCRC has failed to issue the notice within 45 days; or, if after a preliminary investigation, the OCRC notifies the charging party that it is probable that an unlawful discriminatory practice has occurred and the charging party then elects to file a lawsuit and notifies the OCRC.”
Chaz Billington, a partner in the labor and employment group at Vorys, Sater, Seymour and Pease said the changes are a “welcome surprise” for employers.
“Different versions of this bill have been floating around for years,” said Billington. “For some reason, this one caught steam last year and largely flew under the radar.
“The new law makes Ohio more business friendly, especially for multi-state employers who would have to navigate different rules for Ohio than they did in other states.”
Billington said some of the changes restore Ohio Revised Code Section 4112 to its originally intended form when it was first enacted.
“Prior to 1987 when the legislature amended the rules, plaintiffs were required to file administrative charges with the OCRC,” said Billington. “The Ohio Supreme Court interpreted the 1987 legislative amendments to allow for individuals to file suit directly in court without first filing with the OCRC. And it was only after the 1999 Ohio Supreme Court ruling in Genaro v. Cent. Transport Inc. that the right to individually sue a supervisor or manager was established.”
The new law now restricts employees from suing a supervisor or manager personally unless the individual is actually the employer or in cases of retaliation or aiding and abetting.
“I think this provision is especially important since individuals who were named in suits were fearful they could lose their livelihood or would be ostracized for having been publicly accused of unlawful discrimination, personally, in a public filing,” said Billington. “It was stressful for individually named supervisors and disruptive to both their lives and the employer’s business.”
Plaintiff attorney Rachel Reight said although the new law is more employer-friendly, the overall goal of aligning state and federal rules was important.
However, Reight said the changes do present more obstacles to individuals seeking relief since plaintiffs are no longer able to elect their remedy (OCRC or the court), but instead must proceed first to the OCRC.
“Moving the initial filing process from the courts to the OCRC takes away plaintiffs’ right to decide which forum should hear their claims first,” said Reight, a partner at Baasten, McKinley & Co.
“Of particular concern to the plaintiffs’ bar is the stark reduction in the statute of limitations,” said Reight. “While six years was a generous amount of time, the new two-year rule provides significantly less time for attorneys to collect the information and investigate prior to filing charges/complaints,” said Reight. “However, the two-year statute of limitations is tolled while the OCRC is investigating charges of discrimination.”
In addition, Reight said limiting supervisor and manager liability could prove detrimental to employees since “there is no longer this deterrent to prevent supervisors or managers from engaging in discriminatory conduct.”
Adinolfi said the new law also codifies what is known as the Faragher/Ellerth affirmative defense for employers facing harassment claims where no tangible employment action has taken place when the employer has exercised reasonable care to prevent or promptly correct any harassing behavior and 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.
“While the affirmative defense has been available from case law of the United States Supreme Court and Ohio courts, the new law makes it clear that it does apply to claims under Ohio law,” Adinolfi said.
Additionally, it eliminates multiple remedies for age discrimination claims by aligning the requirements with all other protected classes.
“Age discrimination claims had evolved under Ohio law to include multiple sources of a cause of action, differing statutes of limitation and other inconsistencies. To have these claims aligned with other causes of action under Ohio law should be a relief to practitioners,” Adinolfi said.
Reight said many Ohio courts have held that statutory tort damage caps also apply to R.C. §4112 discrimination claims. She said the new law now makes it clear that all actions, including discrimination claims under Chapter 4112, are subject to caps on non-economic compensatory damages at $250,000 or three times the economic damages up to a maximum of $350,000, whichever is greater.
“Punitive damage awards are limited to two times the amount of allowable compensatory damages,” Reight said.
Although she applauds the uniformity the new law brings to discrimination actions, Reight said placing damages caps on claims will harm plaintiffs in the long run.
“The lack of damage caps acted as an additional deterrent to prevent employers from engaging in discriminatory practices,” Reight said.
Reight said she does expect OCRC charges to increase since plaintiffs must first seek to resolve their claims through the commission prior to filing their lawsuit.
“While the new law makes it more difficult for plaintiffs to file a charge for discrimination, plaintiffs should be diligent in speaking with an attorney as soon as practicable to allow the attorney to determine what information needs to be collected prior to timely filing a charge of discrimination,” said Reight.
Billington said since the new law isn’t retroactive, there was a major uptick in court filings prior to the April 15 deadline, with hundreds of companies large and small being served.
“I advised all my clients to first make sure they were not served with an employment lawsuit in March or April 2021, and, if they were, to immediately check to see if their employment practices insurance covers the claim,” said Billington.
“It’s also key that they issue directives to preserve all relevant documents, including emails and text messages,” he said. “Ideally companies would already have protocols in place, but if they don’t, they should contact a lawyer to guide them through the critical steps to take after being served with a lawsuit.
“Given the procedural changes, litigation protocols may need to be updated and employees trained so that everyone is on the same page,” said Billington.