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. 

Court Reinstates Lawsuit Against Individual Manager for Disability Discrimination

Yesterday, the Ohio Court of Appeals reversed a summary judgment dismissing an employee’s claim for disability discrimination against his former manager.  Price v. Carter Lumber Co., 2015-Ohio-1522.   This case only involved state law claims against the manager because the employer had apparently earlier prevailed on an ADA claim in federal court.  The Court found that there was a disputed issue of fact as to whether the plaintiff could perform the essential functions of his position with a reasonable accommodation.  While the plaintiff admittedly could not satisfy the employer’s lifting requirement, there were disputed issues as to whether that lifting requirement was an essential function of the job, whether the plaintiff could be transferred to a non-lifting position or whether the lifting requirement could be accommodated.  The employer did not utilize written job descriptions or performance evaluations to substantiate its arguments.  The employer denied telling the plaintiff that he was being laid off in January 2003 and would never be rehired because of his physical impairments, therefore, the plaintiff was relieved of requesting any specific accommodation.   Nonetheless, the Court affirmed dismissal of the emotional distress claim.

According to the Court’s lengthy opinion, the plaintiff was hired in 1998 as a yard worker at the lumber company.  When he began experiencing vision difficulties in Spring 2002, his driving duties were eliminated.  When he was then placed on lifting restrictions that Fall, he was transferred to a retail counter position part of the time and yard work (without heavy lifting) part of the time.  The employer claims that he had very poor customer and communication skills and never mastered the cash register, etc.  However, none of these performance issues were documented.  The employer regularly laid off employees during the slow winter months, but had previously recalled the plaintiff without requiring him to re-apply.  The plaintiff suffered kidney failure in December 2002 and was released to return to work in January 2003 with heavy lifting restrictions and a regular dialysis schedule.  He was then informed that he was being laid off because of economic conditions.  After some period of time had passed, the defendant manager finally admitted that he was not being recalled and the plaintiff testified that the manager specifically mentioned his dialysis schedule.

The manager contended that heavy lifting was an essential job function of a yard worker, although there was contrary testimony and no job description.   In addition, the manager failed to list heavy lifting as a job requirement when completing the EEOC’s questionnaire.  While workers may help each other out with heavy items, that was not always possible if they were busy with other customers. He also testified that sales employees sometimes also have to lift heavy items and need to  have an additional customer service skill set, which the plaintiff lacked.  He and another witness testified that the plaintiff needed to be repeatedly coached on his communication skills.  The plaintiff was laid off during the slow season and told him to reapply in the future.  The manager denied telling the plaintiff that he would be recalled to work when the economy improved in 2003.

The Court refused to hold the plaintiff to his SSI application where he claimed to be disabled because of his lifting restrictions because the SSI application does not consider reasonable accommodations that could be provided.  

“[n]either application for nor receipt of social security disability benefits is by itself conclusive evidence that an individual is completely incapable of working.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir.2014). “[O]ne may, in fact, be totally disabled under Social Security Disability Insurance (“SSDI”) application guidelines, but nevertheless be capable of performing the essential functions of one’s job. This is so because the focus of SSDI is distinct and does not consider, for example, the effect of a reasonable accommodation on the ability to do work.”

The plaintiff produced evidence of a number of accommodations – “such as rollers, dollies, sliding boards, flatbed carts, and handheld scanners that allow for pricing items without removing them from a cart or dolly”  that might have helped him perform his job.  Moreover, he showed that he had worked for several months with his duties split between yard work and inside sales while he had a similar lifting restriction. 

The Court also found a factual dispute to exists as to whether repeated heavy lifting was an essential function of a sales position.  Similarly, a factual dispute existed as to whether the plaintiff could perform either the yard worker or sales position with a reasonable accommodation.  There were no job descriptions and was conflicting testimony about the necessity of heavy lifting on those jobs.

In addition, the Court also found that the plaintiff was not required to request an accommodation because he had never been informed that his employment was being terminated on account of his physical limitations.  Instead, his termination was attributed to “seasonal cutbacks.”  When the plaintiff visited the store several times after his termination to see if he could return, he was not told about concerns with his physical limitations.  There was no discussion about any possible accommodations or limitations.  Finally, the plaintiff claimed that he was told that he was told the real issue was his dialysis schedule.

Nonetheless, the Court affirmed the dismissal of his emotional distress claim (i.e., intentional infliction of emotional distress).   The plaintiff felt distressed that his manager mislead him about his eligibility to return to work.

Although Mr. Price argues that Mr. Collins told him “numerous lies * * * about rehiring him in the Spring,” he failed to present evidence of any affirmative statements that Mr. Collins made in which Mr. Collins actually promised to rehire him. At best, Mr. Price set forth evidence that Mr. Collins implied he would have a future with the company. Even viewing that evidence in a light most favorable to Mr. Price, however, we cannot agree that it created a genuine issue of material fact for trial. Any false sense of hope that Mr. Collins might have given to Mr. Price and his wife at a time when they were mentally and financially vulnerable was morally reprehensible. We cannot say, however, that it was legally actionable.

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 be changed or 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

Ohio Supreme Court Questions Genaro and Holds Individual Supervisors Are Entitled to Immunity From Most Discrimination Claims

Last week, the Ohio Supreme Court issued a second decision on Thursday addressing an employer’s respondeat superior liability.  In this second case, the Court concluded that the same statutory language from Ohio Revised Code § 4112.01(A) upon which it relied to impose individual supervisor liability in its 1999 decision in Genaro v. Cent. Transport, Inc., 84 Ohio St.3d 293, 1999-Ohio-353 was not sufficient to override political subdivision immunity for supervisors in Ohio Revised Code §2744.03(A)(6)(c). Hauser v. Dayton Police Dept., Slip Opinion No. 2014-Ohio-3636.  In Hauser, the plaintiff had alleged that she had suffered sexual discrimination from her employer and supervisor.   The supervisor moved for summary judgment on the grounds that he was immune under R.C.  §2744.03.  His motion was denied and this was affirmed on appeal with the courts concluding that: “an employee of a political subdivision is not entitled to immunity if a section of the Revised Code expressly imposes civil liability,” and, under Genaro,  “civil liability is expressly imposed upon managers or supervisors, such as Davis, under R.C. 4112.01(A)(2) for their individual violations of R.C. 4112.02(A).” The Supreme Court reversed on the grounds that the language in §4112.01(A)(2) existed only to impose vicarious liability on employers for their discriminatory actions and did not expressly override a government supervisor’s sovereign immunity.  “We underscore, however, that our conclusion is limited to the provisions dealing with “employer” discrimination [under] R.C. 4112.01(A)(2) and 4112.02(A). An individual political-subdivision employee still faces liability under other provisions of R.C. 4112.02 that expressly impose liability, including the aiding-and-abetting provision in R.C. 4112.02(J).”

The basis for the Court’s Hauser holding is that the statutory language in R.C. §4112.01(A)(2) was based on language in the National Labor Relations Act which the U.S. Supreme Court had previously held only established respondeat superior liability.  The Court also observed that the General Assembly knew how to establish individual liability because it had done so in a different provision of the Ohio Civil Rights Act at R.C. §4112.02(J) and (G):

If we were to conclude that the employer-discrimination provision in R.C. 4112.02(A) expressly imposes liability on employees, we would render the aiding-and-abetting provision in R.C. 4112.02(J) largely superfluous. That provision already holds individual employees liable for their participation in discriminatory practices. This context supports our determination that R.C. 4112.01(A)(1) and 4112.02(A) subject employers to vicarious liability and do not expressly impose liability on individual employees.

The Court also noted – as did the Genaro court – that the federal courts do not impose individual liability based on similar language in Title VII.  Moreover, the Ohio Civil Rights Act exempts smaller employers (with fewer than four employees) and that is inherently inconsistent with imposing individual liability. “Reading the statute to simultaneously exempt a small-business owner from liability yet impose liability on any individual working for a larger company obstructs this purpose. If a statute is susceptible to different meanings, we should favor the meaning that “furthers the legislative purpose” over the meaning that obstructs or hinders that purpose.”

In his dissent, Justice O’Neil observed that while he did not agree with the Court’s 1999 Genaro decision, he felt it controlled the outcome in this decision.  As reflected in the discussion of the Genaro decision below, I would have to agree.  This might have been as good of an opportunity as any to explicitly overrule Genaro, but that did not happen.

 In Genaro, the Supreme Court considered the respondeat liability argument it adopted today, but nonetheless ruled that individual liability existed based on public policy and the exact same language that the Court held today imposed only vicarious liability:

R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, and any person acting directly or indirectly in the interest of an employer.” (Emphasis added.)  . . . It is clear that the R.C. 4112.01(A)(2) definition of “employer,” by its very terms, encompasses individual supervisors and managers whose conduct violates the provisions of R.C.  Chapter 4112.

                . . .

As previously set forth herein, R.C. 4112.01(A)(2) defines “employer” as “any person employing four or more persons within the state, * * * and any person acting directly or indirectly in the interest of an employer.” (Emphasis added.) In contrast, under Title VII, “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees * * * and any agent of such a person.” (Emphasis added.) Section 2000e(b), Title 42, U.S. Code. The differing numerosity requirements and uses of agency terminology indicate that Title VII’s definition of “employer” is far less reaching than the encompassing language of R.C. 4112.01(A)(2). Without doubt, the language employed by the General Assembly with regard to R.C. 4112.01(A)(2) is much broader in scope than that employed by the analogous Title VII provision.

                . . .

Based on the foregoing, we believe that the clear and unambiguous language of R.C. 4112.01(A)(1) and (A)(2), as well as the salutary antidiscrimination purposes of R.C. Chapter 4112, and this court’s pronouncements in cases involving workplace discrimination, all evidence that individual supervisors and managers are  accountable for their own discriminatory conduct occurring in the workplace environment. Accordingly, we answer the certified question in the affirmative and hold that for purposes of R.C. Chapter 4112, a supervisor/manager may be held jointly and/or severally liable with her/his employer for discriminatory conduct of the supervisor/manager in violation of R.C. Chapter 4112.

In Hauser, the Court attempted to distinguish Genaro, but simply questioned its validity instead of overruling it:

The certified question in Genaro involved private-sector supervisors and managers, and it asked only whether such persons may be jointly and severally liable with an employer for conduct “in violation of R.C. Chapter 4112.” Id. at 293, 300. We did not address whether the employer-discrimination provision in R.C. 4112.02(A) “expressly imposed” civil liability on a political subdivision employee for purposes of the immunity exception in R.C. 2744.03(A)(6)(c). To be sure, our reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII. See Genaro at 299 (declaring R.C. 4112.01(A)(2)’s definition of employer to be “broader” than Title VII’s definition). But because Genaro did not squarely address the immunity question at issue here, it is not binding authority, and we need not apply Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, to decide whether we should overrule it.  (emphasis added).

In that the public-private distinction seems irrelevant to whether the statutory language in question exists to impose respondeat superior liability as the Court now holds or individual liability as the Genaro court held in 1999, it seems likely that the Court would overrule Genaro if a better opportunity presented itself.   The question now is whether trial and appellate courts will take that opportunity to put the question before the Court in light of the Court’s apparent invitation (above) to do so.

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.

Sixth Circuit: USERRA Claims Subject to Arbitration Clause in Employment Agreement.

Today, the Sixth Circuit held that an optometrist’s claims that he was discriminated against in violation of USERRA was subject to the arbitration clause he signed when he was hired. In Landis v. Pinnacle Eye Care LLC, 07-6204 (6th Cir.), when the plaintiff optometrist signed his employment agreement upon being hired in 1995, it contained an arbitration clause where he promised “to ‘resolve any controversy, dispute or disagreement arising out of or relating to [the] Agreement’ through negotiation or, if negotiation proved unsuccessful, through arbitration governed by the American Arbitration Association.” He claims that he negotiated revised terms of employment in 2004 when he was called up by the National Guard to serve in Afghanistan. However, when he returned to work in 2005, the defendant employer refused to honor the alleged modified terms of employment and allegedly “threatened that any further
involvement with the military would adversely affect his career.”

When the plaintiff optometrist filed suit over the breach of the modified agreement and threats about his military career, the district court stayed the action on account of the arbitration clause in his employment agreement and referred the entire matter (including the claims against the individual defendants) to arbitration. The Sixth Circuit agreed because the plaintiff’s claims “fall within the scope of the employment agreement since Article VIII, Section 8.7 of the agreement states that ‘[t]his Agreement constitutes the entire agreement between Practice and Optometrist pertaining to the employment relationship between Practice and Optometrist.’ Therefore, any termination or modification of employment necessarily relates to ‘the employment relationship’ and is subject to the arbitration clause.” Moreover, the claims against the individual defendants (who were not parties to the employment agreement) “were subject to the arbitration clause of the employment agreement. These parties were employers within the meaning of USERRA, 38 U.S.C. § 4303(4)(A), and the claims against them arose in their capacities as managers” of the employer’s offices. Finally, although a few district courts in other jurisdictions disagreed, the Sixth Circuit found that there was nothing in the statutory language of USERRA or its history to indicate that it was not subject to the Federal Arbitration Act to the same extent as Title VII, the ADEA and other federal employment statutes.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0285p-06.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.