Guest post by Thomas Spyker, Esq., Reminger Attorneys
On January 12, 2021, Governor DeWine signed House Bill 352, the Employment Law Uniformity Act (“ELUA”). The ELUA takes effect 90 days from its enactment and overhauls Ohio Revised Code Chapter 4112, which has been criticized previously for its vagueness and inconsistencies. These issues have led the Supreme Court of Ohio to interpret the statute broadly and expand the scope of employment claims for over twenty years. The ELUA reigns in a number of these judicial interpretations.
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On the surface, the changes enacted by the ELUA seem sweeping. But on a closer review, they are familiar and bring Ohio’s anti-discrimination statute more in line with its federal counterpart, Title VII, and on par with other state statutes. Among the reforms, some of the most important are:
- Reducing the six-year statute of limitations for workplace discrimination claims to two years;
- Requiring an exhaustion of administrative remedies before filing a civil lawsuit;
- Protecting individual supervisors from personal liability in most circumstances;
- Narrowing the Faragher-Ellerth affirmative defense for harassment claims based on an employer’s policies and procedures to prevent and promptly correct harassing conduct in the workplace; and
- Clarifying the process for filing an age discrimination claim.
The ELUA is an important reform for employers who have long argued Ohio’s judicially expanded employment statute unduly limited business opportunities. Below, each point is discussed in more detail.
Statute of Limitations
Currently, an employee has six years to bring a civil action for workplace discrimination under R.C. Chapter 4112. This limitation period is the longest of any state in the country. However, this lengthy statute was not created by the statute itself, but rather by the Supreme Court of Ohio’s interpretation of the law in Cosgrove v. Williamsburg of Cincinnati Management Company, Inc., 70 Ohio St.3d 281 (1994).
The ELUA removes any ambiguity and codifies a two-year statute of limitations to file a civil suit. The ELUA creates further uniformity by enacting the same two-year statute of limitations to file the required administrative charge (previously 180 days). As detailed below, filing an administrative charge is now a requirement prior to filing suit. Thus, when the administrative charge is filed and pending, the two-year statute of limitations to file the civil suit is tolled.
Under the current version of R.C. Chapter 4112, a workplace discrimination claim can be filed administratively through the Ohio Civil Rights Commission (“OCRC”) or in a court of common pleas. This has been one of the biggest differences between the Ohio law and its federal counterpart which requires a party to participate in the administrative process before suing. The ELUA amends Chapter 4112 to better mirror federal law, requiring a party to submit a timely charge to the OCRC before filing suit in court.
Ohio has long recognized individual supervisor liability for employment discrimination claims under R.C. Chapter 4112. See Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293 (1999). The ELUA expressly states its intent to supersede Genaro and prohibit individual supervisor liability where the supervisor is acting in the interest of the employer. This significantly narrows the actionable scenarios where individual supervisors face liability. Under the ELUA, an individual supervisor will only face individual liability in two specific scenarios: (1) the supervisor is the employer (i.e. the owner of the business); or (2) the claim involves retaliation for opposing discrimination, aiding a discriminatory practice, or obstructing a person from complying with the Ohio Civil Rights Law.
Faragher-Ellerth Affirmative Defense
The Faragher-Ellerth doctrine is an affirmative defense to federal sexual harassment claims brought under Title VII. The common law defense is specific to Title VII and has not been uniformly applied by the courts in relation to state claims under R.C. Chapter 4112.
The ELUA codifies the defense and provides that an employer can avoid vicarious liability if it can show:
- The employer had an effective anti-discrimination policy in place with complaint procedures;
- The employer properly educated the employee about the procedures;
- The employer had complaint procedures in place and the employee failed to take advantage of those resources; and
- The employer exercised reasonable care to prevent or promptly correct the harassing behavior.
This defense is rebuttable if an employee can show that following the procedures would have failed or been futile. It is also important to note that this defense pertains to hostile work environment claims—not claims where there has been a tangible employment action such as a termination.
Age Discrimination Claims
Under current Ohio law, there are a number of conflicting avenues to pursue age claims. The ELUA eliminates this confusion by bringing age claims under a single statutory subsection and subjecting the claim to the same procedural requirements as claims based on other protected classes. Age claims under Ohio law will be subject to the other provisions of the ELUA discussed above.
If you have any questions regarding the ELUA or have any other employment question, please feel free to call Tom or any member of Reminger’s Employment Practices Defense Group.