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.
