Ohio Modifies Ohio Civil Rights Act and Shortens Limitations Periods

 

What a long strange trip it has been.  Yesterday, Governor DeWine signed H.B. 352 into law.  While it is a scaled down version of what passed the Senate before Christmas, it addresses long-standing concerns with Ohio employment discrimination legal procedures and makes them more consistent and often still more generous than exist under federal law. Among other things, it generally shortens the limitations period for 4112 claims and some federal statutory claims to two years, requires exhaustion of remedies, incorporates specific federal defenses, and makes damages subject to tort cap limits, etc.  It still retains the right of employees to bring certain age discrimination and injunctive relief claims directly in court.

First, it shortens the limitations period for claims under O.R.C. § 4112, and federal claims under §§1981a, 1983 and 1985 to two years (from the existing six years), which is still twice as long as the federal limitations period under Title VII, the ADEA and the ADA, etc.  (The limitations periods for those federal statutes vary from state to state because they “borrow” the analogous state limitations period).  The limitations period begins to run from the date when “the alleged unlawful discriminatory practice was committed.”  This period will be tolled for Chapter 4112 claims as long as a Charge is pending at the OCRC, except that if the Charge was not filed until less than 60 days before the limitations period was about to lapse (i.e., on day 670), then the tolling will last another 60 days after the Charge is no longer pending at the OCRC.

Second, similar to federal law and with a few exceptions, it requires employees to first file a Charge with the Ohio Civil Rights Commission, before filing a lawsuit.   The time period for filing a Charge is the same as for filing a lawsuit: two years.   Employees may still request a right to sue letter from the OCRC prior to the conclusion of any OCRC investigation, but the OCRC may not issue the right to sue unless the Charge has been pending at least 60 days.

Third, with certain exceptions, employees cannot file suit unless they have a Right to Sue letter, have waited at least 45 days after requesting a RTS letter and 60 days since filing a Charge, or have received a letter where the OCRC found probable cause of discrimination to have occurred.   These conditions do not apply if the employee is only seeking injunctive relief or if the employee filed a timely charge with both the OCRC and EEOC and the EEOC has issued a right to sue letter (or if filing a lawsuit for age discrimination under §4112.14).   But, if the employee initially sought only injunctive relief from a court and later amends his or her complaint to include a claim for damages, the employee must have filed a timely OCRC Charge and comply with the right-to-sue letter requirements.   

Fourth, as with federal law, it eliminates individual liability of managers and supervisors under the statute.  The legislation notes that it intends to overrule the Ohio Supreme Court’s Genaro decision and to instead follow long-standing federal law on this issue.  

Fourth, it explicitly adopts the federal standard and affirmative defense from Faragher, for sexual harassment claims. 

Sixth, it makes verdicts for Chapter 4112 claims subject to the tort caps for non-economic damages.  

Seventh, it makes Chapter 4112 the sole and exclusive remedy for employment discrimination, which is similar to federal law.  In other words, there cannot be a common law wrongful discharge claims for violation of public policy against employment discrimination.

Finally, while it retains under §4112.14 the existing right of employees not subject to an arbitration agreement to file suit for age discrimination claims seeking only reinstatement, back pay, costs and attorney’s fees and the existing election of remedies, it added a few wrinkles.   The employee must still elect remedies (i.e., bring this direct action without being able to sue for compensatory or punitive damages or being required to file an OCRC Charge).   These direct actions are still subject to the new two year statute of limitations as described above.   Like other 4112 claims, that limitations period may be tolled if the employee filed a Charge with the OCRC making the same allegations. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Franklin County Court of Appeals Upholds OCRC Order That Employer Retaliated Against Office Manager For Informing Employee of Discrimination.

Last week, the Franklin County Court of Appeals upheld an order by the Ohio Civil Rights Commission reinstating an office manager who had been fired in retaliation for telling an African-American employee that he had been denied health insurance which was provided to white employees and for helping that employee bring a discrimination claim against the employer. HLS Bonding v. Ohio Civ. Rights Comm., 2008-Ohio-4107 (8/14/08). The court of appeals found sufficient evidence in the record to prove both a prima facie case of retaliation and that the employer’s explanation for his termination was pretextual -- i.e., a disguise to hide the true retaliatory motive.

In that case, the office manager had received nothing but positive performance evaluations and raises. Indeed, only a month before he was terminated, the managing partners asked him to join their business partnership. The office manager asked the employer to extend health insurance benefits to the company’s only full-time African-American employee, but they refused. He then told the employee how other (white) employees were provided with insurance benefits and that he thought the employee should receive similar benefits. That employee – who had requested insurance benefits in the past -- then confronted the employers (while taping the conversation with knowledge of the office manager) and filed a Charge of Discrimination with the OCRC which listed the office manager as a witness. After receiving a copy of the Charge, the employer then demoted the office manager, terminated all employee health insurance benefits, demoted the office manager again and ultimately fired him – purportedly for poor performance and insubordination.

The office manager filed a Charge with the OCRC alleging that he had been fired in retaliation for the African-American employee filing his Charge. Following a public hearing, the Commission ruled in favor of the office manager and ordered the employer to reinstate him and to pay him within ten days by certified check all back pay, benefits and interest (less his interim earnings).

Interestingly, the Court affirmed the OCRC’s ruling that the employer retaliated against the office manager under the Ohio Civil Right Act’s participation clause, rather than the opposition clause. Ohio Revised Code § 4112.02(I) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section ["opposition clause"] or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code ["participation clause"]." (emphasis added). This is probably because, as noted in my June 28, 2008 blog, “’[t]he distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).”

The Franklin County Court then noted that “reliable, probative, and substantial evidence supports the finding that [the office manager] engaged or participated in a protected activity. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity. [The office manager] alerted [the African-American employee] to the health care issue. [The office manager] told [the African-American employee] that he would testify on [the employee’s] behalf before the Commission. [The employee] named [the office manager] as a witness when he brought his claim. [The office manager] told his employer that it should offer [the employee] health care benefits [and] was present and knew [the employee] was "wired," when [he] then asked their employer for health care benefits.”

The court failed to explain why the office manager’s conduct was not protected opposition. As recently noted by the Sixth Circuit in Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08), “’The opposition clause . . . covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers. . . . We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.” In contrast, the Sixth Circuit has noted that the participation clause “extends to persons who have participated in any manner in Title VII proceedings.” In this case, the Franklin County Court rejected the employer’s arguments that the office manager’s conduct could not constitute protected participation because it pre-dated the filing of the OCRC/EEOC Charge and any government investigation because the court considered "the instigation of proceedings leading to the filing of a complaint or a charge * * * is a prerequisite to protection under the participation clause” under Sixth Circuit precedent. It seems more likely that the OCRC and the court did not want to address the reasonableness of the office manager’s conduct under the opposition clause precedent.


The court found the evidence also showed that there was a causal connection between the filing of the OCRC Charge and the demotions and eventual termination of the office manager because the office manager’s first demotion – removing his authority over the benefit plans – took place only two weeks after the employer’s receipt of the OCRC Charge.

The court also agreed with the conclusion of pretext from the employer’s articulated explanation for why it demoted and terminated the office manager. First, the employer never counseled the office manager about his supposed poor performance before his demotion. On the contrary, they had recently asked him to become one of their business partners. In addition, the OCRC hearing officer office did not find the witness to be credible that the office manager was fired because he scared the managing partner during a conversation. Finally, the weight of the circumstantial evidence presented in the prima facie case was much more convincing as to why the office manager was fired.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-4107.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unanimous Supreme Court: OCRC Must Issue Subpoena Requested by Employer During Preliminary Investigation.

In late March, a unanimous Ohio Supreme Court ruled that Ohio Revised Code § 4112.04(B) requires the Ohio Civil Rights Commission to issue a subpoena requested by an employer during the OCRC’s preliminary investigation. In doing so, the Court invalidated OCRC Rule, Ohio Administrative Code 4112-3-13(B), for conflicting with the controlling statute. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., Slip Opinion No. 2008-Ohio-1261 (3/26/08).

The case arose because an American Legion Post was notified by the OCRC that a former employee had filed a Charge claiming to have been sexually harassed and then fired for complaining. The Post asserted that the Claimant had been fired after it received an anonymous letter alleging that the Claimant was a convicted felon. The Post requested the OCRC to issue a subpoena to the Claimant’s parole officer so that it could inspect her criminal and probation records to prove a non-discriminatory/retaliatory reason for firing her. The OCRC declined to issue a subpoena on the Post’s behalf, and instead, issued a subpoena on its own behalf and reviewed the records itself. The OCRC declined to permit the employer to review the subpoenaed records and issued a probable cause finding that the Post had probably committed an unlawful discriminatory practice. When conciliation failed, the OCRC instituted formal proceedings against the Post.

In the meantime, the Post initiated mandamus proceedings in court against the OCRC for refusing to issue the requested subpoena. The trial court granted the OCRC’s motion to dismiss. However, that decision was reversed on appeal. As mentioned, the Supreme Court affirmed the reversal on the grounds that the OCRC was required by statute to issue the requested subpoena.

Insomniacs may read the decision in full at http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1261.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

OCRC's Proposed Pregnancy Leave Rules Rejected by Legislators

Columbus media are reporting that the General Assembly's Joint Commission on Agency Rule Review struck down in a 9-1 vote yesterday the OCRC's proposed new rules mandating twelve weeks of maternity leave for female employees in the state (as summarized here on October 29, 2007). One of the JCARR is quoted as basing his vote on the lack of data about the cost of the rule change on government employers. The OCRC has regularly argued that the proposed rule only clarified existing regulations which already require that employers (of four or more employees) provide a reasonable period of maternity leave. However, the proposed rule actually went further than that in also requiring, for instance, mandatory light duty assignments for pregnant employees even if light duty was not provided for similarly situated male employees disabled by a non-work-related accident (i.e., non-workers compensation). Rather, if the employer had a workers compensation light duty program, it was required by the proposed OCRC rules to similarly provide light duty for pregnant employees. Although the OCRC is likely to try again in a few months, for now Ohio employers need not revise their maternity leave policies to reflect the OCRC's proposed rule.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Pregnant Expectations in Ohio: Expansions and Contractions

Ohio Civil Rights Commission Expands Maternity Leave Benefits Beyond Those Required by Federal Law.

On Thursday, October 25, 2007, the Ohio Civil Rights Commission (OCRC) approved an amendment to Ohio Administrative Code § 4112-5-05 governing sex discrimination which will affect all employers (of four or more employees) who interview, hire or employ pregnant employees. The regulatory amendment must still be approved by the Joint Commission on Agency Rule Review and will then take affect in 30 days. If approved, the amendment will have a significant impact on employment policies governing maternity leave and other benefits given to employees:

• Pregnant employees are entitled to light duty positions, other modified work programs and receipt of fringe benefits to the same extent as non-pregnant employees who are similar in their ability to work regardless of any distinctions or qualifications currently made in the employer’s policies regarding length of service, nature of the medical condition or whether the medical conditions is related to an on-the-job injury. In other words, if certain benefits and light duty job assignments are only available to employees who were injured on the job (so that they could not received income replacement from a workers’ compensation injury) or only to employees who have been employed for at least, for example, six months, those same benefits must be made available to an “employee affected by pregnancy, childbirth or related medical condition” regardless of whether the pregnant employee was injured on the job or had only been employed one day. On the other hand, if the employer does not offer light duty or modified work assignments to any employees, pregnant employees will not be entitled to them either.


• Employment policies which provide for “less than twelve weeks of pregnancy, childbirth or maternity leave . . . shall be presumed to have a disparate impact on women and constitute unlawful sex discrimination unless justified by business necessity (when “an adverse employment action is taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition”).


• “No employer shall be permitted to place an employee affected by pregnancy, childbirth or a related medical condition on mandatory leave, or otherwise limit or alter her job duties, in the absence of an objective, verifiable safety justification and only when the pregnancy or related medical condition interferes with her ability to safely perform her position.”

The OCRC current regulation requires only a leave of absence for a “reasonable period of time” and subjected the leave to the same minimum length of service requirements as required of non-pregnant employees who were eligible for medical leaves of absence. Even if employers did not have a medical leave of absence policy, they are still required under the current regulations to provide a reasonable period of time for maternity leave.

Under federal non-discrimination law, employers are only required to treat pregnant employees the same as other employees who are similarly limited in their ability to work. Therefore, if the employer did not offer any medical or sick leave, pregnant employees were not entitled to any medical leave.

Under the FMLA, pregnant employees are entitled to twelve weeks of medical leave, but only to the extent that they qualify, have not otherwise exhausted their twelve-week entitlement in that calendar year, and, coodinate parental leave with a spouse who works for the same employer. The new OCRC regulation is silent about whether an employer must provide the twelve weeks of pregnancy leave without regard to the non-maternity leaves provided under the FMLA or how many weeks of maternity leave the employee has already taken in any twelve month period.

To view the redline version of the amendment, please click here.

Unemployment Compensation Denied to Able-Bodied Pregnant Employee Forced to Take Maternity Leave by CBA.

On October 11, 2007, the Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to a pregnant airline attendant who was forcibly laid off following her 27th week of pregnancy (despite her doctor’s certification that she was able to work) pursuant to the terms of a collective bargaining agreement (which the employer argued was required by FAA regulations). Continental Airlines, Inc. v. Ohio Dept. of Job & Family Servs., 2007-Ohio-5434. The court held that the CBA constituted a common law exception to the prohibition in Ohio Revised Code § 4141.29 against waivers of unemployment compensation. “The Unemployment Compensation Act is not intended for individuals who voluntarily agree to a period of partial unemployment, particularly when the individuals continue to accrue seniority, remain covered under the employer's insurance program, remain eligible for sick pay, and are able to return to their former job as soon as they are able." The court also noted that “the terms of the collective bargaining agreement, mutually negotiated at arms-length by [the claimant’s] union and Continental compel our conclusion that [the claimant] was voluntarily unemployed.”

The court followed a pre-Pregnancy Discrimination Act common pleas case from 1963, Leach v. Columbus Plastics Products, Inc., where the Franklin County Court of Common Pleas held that: "An employee on leave of absence for pregnancy, during a period that such leave is mandatory under rules established pursuant to a collective bargaining agreement, is not entitled to unemployment compensation benefits since she is not `available for suitable work' as required by division (A)(4) of Section 4141.29, Revised Code."

“The overarching analysis of Ohio unemployment compensation law as it relates to this case must determine whether [the claimant] is the type of temporarily unemployed worker to whom the law contemplates providing unemployment benefits. Our analysis concludes that she is not. As a union represented worker, [the claimant] is a party to the collective bargaining agreement. As such, she agreed to stop flying after her 27th week of pregnancy in exchange for the accrual of seniority while on maternity leave, continued coverage under Continental's health insurance plan for the duration of the leave, the option of using sick time during the maternity leave, and full reinstatement at the end of maternity leave. In addition, the collective bargaining agreement gave [the claimant] a one-time option to extend maternity leave for up to 12 months. These contract terms were reached as a result of arms-length negotiations between Continental and [the claimant’s] union, so [the claimant] validly waived the right to unemployment compensation benefits.”

While the court questioned the legality and discriminatory nature of the mandatory maternity leave provision in the CBA, it refused to alter its analysis of the unemployment statute. Its analysis is consistent with a 1987 Supreme Court decision upholding the denial of unemployment compensation to a Missouri woman who was refused reinstatement to her job following a maternity leave under a similar unemployment statute which provided that unemployment compensation is not available to an employee who "has left his work voluntarily without good cause attributable to his work or to his employer." Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511. While federal law at that time precluded the denial of unemployment compensation “solely” on the basis of pregnancy, this did not require preferential treatment for pregnancy when the state law provided that all persons who leave their jobs are disqualified from receiving benefits unless they leave for reasons directly attributable to the work or to the employer.

Insomiacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/8/2007/2007-ohio-5434.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.