Ohio Governor Mike DeWine has signed the employer-friendly Employment Law Uniformity Act (HB 352) (the Act) into law. The law, which will go into effect on April 12, 2021, will apply to all future discrimination claims filed on or after that date. It will align Ohio’s discrimination law with the federal standards and other state discrimination laws across the country. The most meaningful aspects of the 36-page law are summarized below:
2-Year Statute of Limitations
Ohio has long had a six-year statute of limitations for employees to bring discrimination claims against their employers, which was the longest statute of limitations in the country. The Act reduces that statute of limitations to two years. By comparison, the federal discrimination law requires employees to bring discrimination claims within 180 days (300 days if a state or local agency enforces a law that prohibits employment discrimination the same basis) of the discriminatory act.
Exhaustion of Administrative Remedies
Employees will no longer be able to bring suit against their employers in court without first filing a Charge and exhausting administrative remedies before the Ohio Civil Rights Commission (OCRC). This is the process under federal law and in a number of other states, including Indiana, and requires an employee first obtain a “right to sue” letter from the OCRC before the employee can file suit in court. Notably, employees may seek injunctive relief in court prior to filing with the OCRC. This new process will allow the OCRC to consolidate charges of the same alleged violation, which should have the effect of relieving employers from defending the same claims in multiple venues.
No Manager/Supervisor Liability
Under Genaro v. Cent. Transp., Inc., 84 Ohio St.3d 293 (1999), managers/supervisors could be sued personally for their role in workplace discrimination/harassment. The Act removed that language. The actual result of this was less about managers/supervisors actually being held liable and more a plaintiff-side tactic to avoid federal jurisdiction to keep employment cases in state court where plaintiffs tend to fare better. This was based on the language in Ohio Revised Code 4112.01 that defined an “employer” to include “any person acting directly or indirectly in the interest of an employer.” Notably, managers/supervisors who act outside the scope of their employment and discriminate against any employee may still be held personally liable, but it would be under a different theory of liability than Genaro.
Although Ohio has adopted the Faragher/Ellerth affirmative defense through case law, the Act codifies the defense in hostile work environment cases based on all protected classes such as sex, race, religious, age, etc. Employers may avoid liability for hostile work environment in cases that do not involve a tangible employment action when:
- The employer has a robust anti-discrimination policy;
- The employer properly trains employees on appropriate workplace behavior and complaint procedures;
- The employer exercises reasonable care in preventing or correcting harassment in the workplace; and
- The employee failed to invoke the employer’s complaint procedures or other preventive or corrective opportunities.
Lastly, due to convoluted statutory language and case law, employees had three different ways, not to mention timeframes, for filing age discrimination lawsuits. The Act streamlines the age discrimination claim filing process and aligns it with the other discrimination laws so that age discrimination claims no longer have a special set of filing rules and statutes of limitations that apply to them.
The Act signals a huge wave of relief for Ohio employers, and has been a long time in the making. No more keeping employment records for 6 years and no more individual managers/supervisors laying awake at night worried about being personally liable for discrimination, after being sued individually as long as they were acting within the scope of their employment. It puts Ohio more in line with the federal discrimination laws and other state discrimination laws and passed with bipartisan support. The law becomes effective April 12, 2021, which means that, in the meantime, employers should be revising their employment policies and handbooks and training their employees.
About the Author: Sara H. Jodka (Member, Columbus) is a member of the firm’s labor and employment department, she is Vice Chair of the Ohio State Bar Association’s Labor and Employment Section Council, and editor of the All Things HR Blog. You can view her bio here and contact her at 614-744-2943 or firstname.lastname@example.org.