Here’s what businesses need to know about Ohio’s new discrimination law process
Ohio is one of the nation’s outbound states where the number of residents leaving outpaces the number of people coming in. The outbound and inbound folks, however, have something in common. The No. 1 reason they make a move, data shows, is because of a job. Longtime employment lawyer Steve Loewengart is optimistic a new law that went into effect April 15 will reverse the outbound trend.
Ohio Gov. Mike DeWine signed H.B. 352 into law earlier this year. Also known as the Employment Law Uniformity Act, it will usher in broad changes to how discrimination claims are handled. The legislation had bipartisan support and is meant to improve the state’s business climate and draw more investment into Ohio.
“There’s been years and years of fighting between business and labor communities about employment law reform,” says Loewengart, regional managing partner for Fisher Phillips who testified as a proponent of the legislation. “Ohio had some real out-of-step provisions compared to federal law and the laws of a lot of other states. It’s been felt strongly by Republican administrations and business groups that we need to reform it in order to better the business climate and not lose as many jobs to surrounding states.”
Keeping cases out of court. One of the biggest changes is meant to ease the load of cases that make their way to the courts by having plaintiffs exhaust administrative remedies. That means the claim will go to the Ohio Civil Rights Commission first. For employers, they don’t have to deal with simultaneous claims at the commission and in the courts at the same time. Ideally, the commission will fully investigate a claim and facilitate its resolution.
Amending the statute of limitations. Before this new law, an employee had up to six years to pursue a civil claim for discrimination and 180 days to pursue it before the Civil Rights Commission. A new two-year statute of limitations applies to all charges filed with the commission and civil lawsuits. According to Fisher Phillips, reducing the timeframe will ease the recordkeeping burden for businesses. It also will make it easier to track down witnesses who will have fresher recollections of the alleged events. H.B. 352 tolls the statute of limitations to file a civil lawsuit until the Civil Rights Commission process is completed.
Employee liability. The new law limits supervisor, manager and other employee liability for employment discrimination claims. However, it doesn’t protect against personal liability when the individual is the employer or when the individual acted outside the scope of employment or for retaliating against the plaintiff for opposing a discriminatory practice, aiding a discriminatory practice or obstructing the investigation of discrimination. According to Fisher Phillips, the law doesn’t prevent an employee from pursuing a discrimination action against a supervisor, manager or other employee or claims existing under other Ohio laws.
Affirmative defense. The new law codifies the federal Faragher-Ellerth Defense, which will put Ohio on a level playing field with other states. According to Thomson Reuters Practical Law, it’s an affirmative defense employers can use to defend against claims of hostile work environment harassment if: No tangible adverse employment action was taken against the plaintiff, the employer exercised reasonable care to prevent and promptly correct the harassing behavior and the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm by, for example, not taking advantage of reporting procedures outlined in an anti-harassment policy.
Uniform age discrimination claims. Before the new law, these claims could be pursued in multiple ways. Under H.B. 352, age discrimination claims are subject to the new two-year statute of limitations and will be pursued initially at the Civil Rights Commission.
What’s next for employers
Ohio’s employers not only need to have their human resources departments get up to speed about the details of the new law, they have to be on the lookout for hundreds of employment lawsuits that were filed prior to April 15.
Chaz Billington, a partner in Vorys Sater Seymour and Pease’s employment practice, estimates around 400 such suits were filed against companies of all sizes in a variety of industries. Businesses that have never faced employment litigation are being sued and, in some cases, the claims will name a manger, supervisor or other individual defendant.
“Keep your head up. You may be getting a complaint in certified mail format because the court wants to make sure you see it,” Billington says. “Operations that aren’t sued a lot, small and mid-size employers, mom-and-pop shops, those companies probably don’t have a lot of familiarity with these kinds of lawsuits. Keep your eye out because if the complaint gets served, the clock is running.”
Billington advises that in-house counsel and human resources departments should “train down,” especially if a company doesn’t have a statutory agent that is trained to handle important notices. Once a notice comes in, his advice is to issue a litigation hold so documents and electronic communications are preserved and to make sure the IT department knows to shut off routine document destruction policies.
Going forward, Adam Bennett, an associate with Ulmer & Berne, says because the federal affirmative defense is now codified, companies need to make sure they have anti-discrimination and anti-harassment policies in place and ensure HR employees are properly trained on administrating those policies.
“Ultimately, having HR employees who are in the know will trickle down to the rest of your employees,” Bennett says. “If you have HR employees who can effectively talk about your company’s anti-discrimination and anti-harassment policies, it’s more likely that your employees will know how to report and to whom to report. This empowers HR to quickly address any workplace issues that arise.”
Helen Robinson, who represents plaintiffs as an employment and civil rights attorney with Marshall & Forman LLC, says while there are new changes for employers to digest, time-worn best practices can keep them out of trouble.
“Be objective with promotions, hiring decisions, raises, bonuses and document it accordingly,” she says. “Have best practices and systems in place for the things that ultimately lead to these claims. … And, of course, don’t discriminate to begin with.”
Laura Newpoff is a freelance writer.