On January 12, 2021, Governor Mike DeWine signed into law Ohio HB 352 amending the Ohio Civil Rights statutes, Chapter 4112 of the Revised Code. The amendments will go into effect April 13, 2021. The amendments to the Ohio Civil Rights statutes address and clarify a number of issues that are relevant to employers of four or more employees. The significant changes that an employer should be aware of are summarized below.
Chapter 4112 defines unlawful discriminatory employment practices, the procedures for enforcement, the remedies available to the plaintiff and the defenses available to the employer. The Ohio law covers smaller employers, with four or more employees, whereas the comparable federal law covers larger employees with 15 or more employees. The amendments to the Ohio statute bring it more in line with the federal Title VII law.
Employee Must First Go to OCRC
Under the amended statute, an employee claiming to have suffered from a discriminatory practice cannot bring a lawsuit against the employer for monetary damages, lost pay or benefits without first filing a charge of discrimination with the Ohio Civil Rights Commission. (ORC 4112.052). The employee has two years from the date of the alleged discriminatory practice to file a charge with the Ohio Civil Rights Commission in writing and under oath. (ORC 4112.051(C)(2)). The employee can request a Notice of Right to Sue from the Ohio Civil Rights Commission 60 days after filing a charge, in order to file a lawsuit in the Court of Common Pleas. (ORC 4112.051(N)).
No Hiring Quotas
The amendment includes interesting language that expressly relieves employers from a hiring program for any protected status in order to satisfy a quota based on their percentage of population. (ORC 4112.051(L)).
Two-Year Statute of Limitations
The amendment establishes a two-year statute of limitations for the employee to file suit from the date of the alleged discriminatory practice, but additional time is added for filing a lawsuit to accommodate the time that the charge is pending with the Ohio Civil Rights Commission.
No Supervisory/Managerial Individual Liability
Supervisors who allegedly engaged in discriminatory conduct against the employee will no longer be subject to individual liability for the alleged discriminatory practice. However, the employer may be vicariously liable for the alleged discriminatory conduct by a supervisory employee. The elimination of individual liability for a supervisor is a major change under Ohio law that is consistent with the federal law, and changes common law established by the Ohio Supreme Court. (ORC 4112.08(A)).
Safe Harbor Provision Codified as an Affirmative Defense to Sexual Harassment Claims
The amendment provides an affirmative defense to an employer from vicarious liability for conduct by a supervisor that creates a hostile work environment sexual harassment, if the employer can satisfy three elements. First, the employer must prove that it exercised reasonable care to prevent or promptly correct sexually harassing behavior which generally means that the employer has an effective policy that prohibits sexual harassing behavior and provides a mechanism or procedure for enforcing the policy, and the employer has adequately trained the supervisors and employees about the policy and procedure. Second, the complaining employee unreasonably failed to take advantage of the policy and procedure to prevent or correct the sexually harassing behavior. Third, the complaining employee did not suffer a tangible adverse employment action such as a demotion, a reduction in pay or termination. In creating this statutory affirmative defense the legislature is codifying the U.S. Supreme Court decision of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 525 U.S. 742 (1998). This raises an interesting question, whether an employer accused of a hostile work environment based on something other than sexual harassment (i.e. racial discrimination hostile work environment) can raise this safe harbor affirmative defense.
Age Discrimination Claims Clarified
The amendment clarifies the remedies available for alleged age discrimination in employment. If the age discrimination claim against the employer is based on a refusal to hire or on a discharge, the claimant may file a lawsuit in Common Pleas Court with a notice of right to sue from the Ohio Civil Rights Commission to seek reasonable attorney’s fees, compensatory damages for lost wages and lost fringe benefits and for non-economic compensatory damages such as emotional distress and potentially punitive damages. (ORC 4112.14 and 4112.99). If the claimant alleges a discriminatory practice based on age other than failure to hire or wrongful discharge, such as discriminatory pay, failure to promote or hostile work environment, the claimant may recover compensatory damages including lost wages, benefits and non-economic compensatory damages such as emotional distress, and may recover punitive damages if the higher standard of proof is satisfied. However, the employee would not be entitled to recover attorney’s fees unless punitive damages are recovered. (ORC 4112.052(A) and (B) and 4112.99(A)).
Existing Tort Caps Apply to Discrimination Claims
The amendment defines an employment discrimination claim under Chapter 4112 as a tort action for which non-economic compensatory damages and punitive damages are subject to statutory caps on the amount that is recoverable. In order to recover punitive damages, the plaintiff must prove by clear and convincing evidence that the employer acted with malice or aggravated or egregious fraud.