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. 

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.