For years, Ohio lawmakers have attempted to revise Ohio’s anti-discrimination laws, which are codified in Ohio Revised Code Chapter 4112. On January 12, 2021, Governor DeWine signed into law House Bill 352 (“HB 352”), which makes significant changes, mostly in employers’ favor, to Ohio’s anti-discrimination laws.
Most notably, under HB 352, the statute of limitations for employment discrimination claims is reduced from six years to two years. Also, before pursuing a lawsuit in court, potential plaintiffs must file a charge of discrimination with the Ohio Civil Rights Commission (“OCRC”). Among other changes, the law eliminates individual supervisor liability for certain types of claims, simplifies some of the nuances specific to age discrimination claims, and codifies a defense employers may use to refute sexual harassment claims. These changes become effective on April 12, 2021.
Statute of Limitations Decrease to Two Years
Prior to the passage of HB 352, Ohio had one of, if not, the longest statute of limitations in the United States for employment discrimination claims – six years. In addition to subjecting Ohio employers to increased liability, this lengthy timeframe presented significant obstacles in litigation, for example, with respect to witness recollection and document retention. Under HB 352, the statute of limitations for employment discrimination claims becomes two years, subject to certain tolling provisions.
Individuals Must File a Charge First
HB 352 also requires claimants file a charge of discrimination with the OCRC and satisfy certain procedural requirements prior to filing a lawsuit in court alleging employment discrimination. This OCRC charge-filing requirement does not apply to claimants seeking only injunctive relief. Previously, plaintiffs could either immediately file a lawsuit in court, file a charge with the OCRC, or even pursue a lawsuit and an OCRC charge simultaneously.
Age Discrimination Claims Simplified
With respect to age discrimination claims, the current law includes a confusing hodgepodge of provisions, with a different statute of limitations applying depending on the specific provision implicated. Under HB 352, the statutory scheme for age discrimination claims is simplified. As with other employment discrimination claims, age discrimination claims will have a two-year statute of limitations and an employee must exhaust administrative remedies before filing suit.
Individual Employees and Supervisors No Longer “Employers”
HB 352 also amends the definition of “employer” under Ohio Revised Code 4112.01(A)(2) by eliminating its reference to any “person acting directly or indirectly in the interest of an employer.” In doing so, the General Assembly “declare[d] its intent that individual supervisors, managers, or employees not be held liable” for certain discriminatory acts prohibited under Ohio Revised Code 4112. However, individuals still face personal liability for specific types of claims. For example, individuals may still be liable for claims based upon allegations that they engaged in retaliation, aided or abetted a discriminatory act, or obstructed another from complying with the law. In his testimony in support of HB 352, co-sponsor Representative Jon Cross explained that “personal liability remains if it is determined the supervisor acted outside the scope of their employment, retaliated against the claimant, or directly engaged in discrimination.”
Other Legal Concepts Codified
Finally, HB 352 codifies a number of legal concepts that courts have developed through their decisions. For example, HB 352 codifies what is commonly known as the Faragher-Ellerth defense, which Ohio courts have applied for years. Employers may use this defense in response to hostile work environment claims based on allegations of sexual harassment perpetrated by a supervisor. For an employer to avoid liability under this defense, it must prove that: (a) it exercised reasonable care to prevent or promptly correct any harassing behavior; and (b) the employee failed to take advantage of the preventive or corrective opportunities provided by the employer or to avoid harm otherwise. This defense is not available, however, in cases where the supervisor’s harassment resulted in a tangible employment action against the employee, such as a firing or reassignment. In codifying this defense, HB 352 does not reference other types of hostile work environment claims, such as harassment based on race.
HB 352 also confirms that employment discrimination claims under Ohio Revised Code 4112 are “tort actions” subject to Ohio’s laws setting caps on monetary awards for non-economic and punitive damages.
Overall, HB 352 provides many favorable changes for employers to Ohio’s discrimination laws, including shortening the statute of limitations, requiring employees to exhaust administrative remedies before filing a lawsuit, limiting individual liability, clarifying age discrimination claims, and confirming existing case law on a number of pro-employer issues. If you have questions about how these changes impact your business, please contact counsel. At a minimum, given the codification of the above-referenced defense to sexual harassment claims, employers should review their policies to ensure that they expressly prohibit harassing behavior and provide a reasonable reporting mechanism to address quickly and effectively any such claims.
* Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law and is the head of the firm’s Employment and Labor Groups. If you have questions about House Bill 352 or labor and employment matters more generally, please contact Stephen at ssz@zrlaw.com or (216) 696-4441