There have been a few interesting decisions in the past month involving the retroactivity of the amendments to Ohio's fair employment statute at Ohio Revise Code Chapter 4112, subdivision immunity, first amendment defense of churches accused of discrimination and the hiring claim of a "plainly superior" candidate.
In Burch
v. Ohio Farmers Ins. Co., 2023-Ohio-912, the Delaware County Court of
Appeals reversed the dismissal of a complaint of pregnancy discrimination and
retaliation under ORC 4112 which had been filed in December 2021 more than two
years after the claims accrued, but were based on claims that accrued prior to
the April 15, 2021 effective date of the Employment Law Uniformity Act (“ELUA”). The ELUA had shortened Ohio’s limitations
period for ORC 4112 claims to two years and eliminated individual supervisory
liability. The unanimous court found that the EULA was
not retroactive and therefore the claims were governed by the prior legal standards,
which permitted claims to be filed within 6 years of when they accrued and
permitted claims against individual supervisors. Accordingly, ORC 4112 claims which accrued
prior to April 2021 may be brought in Ohio courts until April 14, 2027.
In Kubala
v. Smith, 2023-Ohio-99, the Trumbull
County Court of Appeals affirmed the summary judgment denial of statutory individual
and political subdivision immunity to the county engineer, who was alleged to
have created a hostile work environment in a same sex harassment case by making
numerous crude and offensive statements to and about the plaintiff. The statute denies immunity where the alleged
actions are manifestly outside the scope of the defendant’s employment or
official responsibilities and where the alleged acts were malicious, in bad
faith or in a wanton and reckless manner.
The court agreed that even if some of the crude comments were made during
workplace discussions of county projects, none of the county’s business was being
furthered or promoted by the alleged comments and thus could be found by a jury
to be manifestly outside the engineer’s official responsibilities. There was also enough evidence to survive
summary judgment that the conduct was malicious, in bad faith or reckless
because it was inferentially or explicitly sexual in nature.
In Levine v.
DeJoy, No. 22-1388 (6th Cir. 4-10-23), the Sixth Circuit
reversed an employer’s summary judgment on a Title VII claim when it failed to
promote as customer services supervisor a black 27-year employee, with greater
managerial experience, who had received perfect mystery shopper awards, and held
AD, BA and MBA degrees instead of a white employee with less than 8 years of
experience and no post-secondary education who was serving as the acting customer
service supervisor, but who the plaintiff was then asked to help train for the
supervisory position. The hiring manager explained that the
interviews were the deciding factor since the plaintiff seemed too
accommodating to employees and the white employee was extremely knowledgeable
about the collective bargaining agreement and holding employees accountable and
possessed superior knowledge of the particular position. The Court’s majority found that the plaintiff
presented sufficient evidence of pretext to challenge the employer’s
explanation for its hiring decision when her qualifications were significantly
better than and “plainly superior to” those of the successful candidate:
In the instant case, [the plaintiff] has provided an abundance of
evidence substantiating that she is arguably more qualified for the position
than Peare. “[W]hen qualifications evidence is all (or nearly all) that a
plaintiff proffers to show pretext, the evidence must be of sufficient
significance itself to call into question the honesty of the employer’s
explanation” for its hiring decision. . . . . In determining whether a
plaintiff has provided enough evidence “to raise a genuine issue of fact of
discriminatory motive,” the Court recognizes that employers “are generally free
to choose among qualified candidates . . . .” . . . With those principles in mind, a court
ruling on a motion for summary judgment must consider that:
[i]f a factfinder can conclude that a reasonable
employer would have found the plaintiff to be significantly better qualified
for the job, but this employer did not, the factfinder can legitimately infer
that the employer consciously selected a less-qualified candidate—something
employers do not usually do, unless some other strong consideration, such as
discrimination, enters into the picture
In Montgomery
v. St. John’s United Church of Christ, 2023-Ohio-1168,
the Stark County Court of Appeals affirmed the church’s summary judgment on
sexual harassment claims brought by two dismissed ministerial employees. The employees complained about being
terminated after objecting to the comments and lifestyle of a leading parishioner
who had sought their advice and listening ears.
They both admitted that he had not sought sex with them, but merely
discussed his own sex life, and personal issues. The Court agreed that the First Amendment
precluded courts from evaluating decisions about religious ministers because it
would necessarily involve the court evaluating religious issues.
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.
