After years of lobbying from employers and defense counsel seeking to overhaul Ohio’s workplace discrimination laws, Governor DeWine signed House Bill 352 into law on January 12, 2021. The new law tips the scales in favor of employers in workplace discrimination cases. The changes will impact the way employment law attorneys practice and their clients pursue, or defend, workplace discrimination claims. Let’s take a look at some of the most significant changes to the law:
Limits Liability for Individual Supervisors
The new law excludes persons acting directly or indirectly in an employer’s interest from the definition of an “employer” under the Ohio Civil Rights Law. This change means that individual supervisors cannot be held personally liable for workplace discrimination claims if they were acting in the interest of an employer except in limited circumstances. Individual supervisors can be held personally liable if it is determined they acted outside of the scope of their employment, retaliated against the complainant, or obstructed the complainant from pursuing a claim with the Ohio Civil Rights Commission (OCRC).
Establishes a Specific Procedure for Employment Discrimination Claims
Under the current law, plaintiffs can file workplace discrimination claims with the OCRC or in a county court. The new law removes this choice and requires that an individual first file a charge with the OCRC before she may file a civil lawsuit. Once a charge is opened with the OCRC, the agency will begin an investigation. After sixty days, the complainant may request a notice of right to sue from the OCRC. After the complainant receives a notice of right to sue from the OCRC (or more than 45 days have passed without a response to the request) the complainant may file a civil lawsuit. An individual may also file a lawsuit if she obtains a notice of right to sue from the Equal Employment Opportunity Commission (the agency that enforces federal employment discrimination laws).
If the OCRC finds it probable that workplace discrimination has occurred, the complainant will have the choice of allowing the OCRC to prosecute the claim (including attempting to resolve the claim through alternative dispute resolution) or to withdraw from the administrative process and file a civil lawsuit in the county courts.
Statute of Limitations for Workplace Discrimination Claims
For most claims, the current law allows a person to bring a lawsuit alleging violation of the Ohio Civil Rights Law within six years after the alleged discriminatory act occurred. The new law requires a plaintiff to file suit based on workplace discrimination within two years. The statute of limitations is tolled while a charge based on the same allegations is pending with the OCRC.
Affirmative Defenses for Employers in Sexual Harassment Cases
The new law affords employers an affirmative defense to a claim for vicarious liability in which an employee alleges that a supervisor created a hostile work environment through sexually harassing behavior. In the typical sexual harassment case, an employee alleges that a specific boss or supervisor subjected the employee to a hostile work environment, and the employee seeks to hold both the supervisor and the company/employer liable. Under the new law, the employer can raise an affirmative defense to these claims if it can prove: (1) that it had an effective harassment policy; (2) that it properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent or promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities. This is basically a re-statement of current federal law governing sexual harassment claims.
Age Discrimination Claims
Plaintiffs have previously pursued employment-based age discrimination claims through a variety of statutory mechanisms. The new law clarifies that age discrimination claims must be pursued through the same avenues in which all other workplace discrimination claims are pursued – i.e. – the process discussed above.
In order to pursue a workplace discrimination claim at the federal or state level, a plaintiff must have an understanding of the administrative procedures required by the EEOC and the OCRC. An individual subjected to workplace discrimination risks losing her claim if she fails to timely pursue an action or fails to adhere to the administrative procedures required to lodge a claim. The Finney Law Firm has experienced employment attorneys dedicated to protecting the rights of employers and employees in the workplace. We can help you navigate these claims at both the federal and state level.
For more information on this new statute, contact Brad Gibson (513.643.6661). Read more about our Employment Law practice here.