Quietly, some big changes to Ohio civil rights law are coming in 2021. Earlier this month, Governor Mike DeWine signed Substitute House Bill 352, known as the "Employment Law Uniformity Act." With the new law, some of the anomalies that existed in Ohio's anti-discrimination laws are now largely gone.
First, let's talk a little bit about the Ohio Civil Rights Act. Many people do not realize the Ohio civil rights law actually pre dates the federal law, Title VII of the Civil Rights Act. Ohio had its own anti-discrimination laws in 1959, five years prior to Title VII. Over the years, the Ohio Civil Rights Act has been amended to address other issues, such as age and disability discrimination. The hodge-podge of amendments, and perhaps the lack of a federal counterpart to copy at its inception (and maybe a lack of detail on the part of the General Assembly), caused the Ohio Supreme Court to be called upon to fill in many of the gaps.
For example, the Ohio Civil Rights Act borrowed the definition of "employer" from the Fair Labor Standards Act, a federal law governing minimum wage and overtime. Under the federal law, an individual employer can be personally on the hook for unpaid wages. Therefore, according to a 1999 Ohio Supreme Court decision, this meant individual supervisors could be deemed "employers" under the Ohio Civil Rights Act and be held personally liable for discrimination in the workplace.
Also, because the Ohio Civil Rights Act did not contain a specific statute of limitations for filing a lawsuit, again the Ohio Supreme Court stepped in and filled the gap. In 1994, it held that the state's general six-year statute of limitations applied to the Ohio Civil Rights Act. The age discrimination provisions were also amended over the years, which led to two different age discrimination code sections, each with different remedies and statutes of limitations.
What did this all mean? It meant that the Ohio Civil Rights Act had unintended loopholes and traps and often, shrewd plaintiffs' attorneys would be able to use them to the advantage of their clients. For example, a plaintiff could file a discrimination action directly in court without first filing a charge with the Ohio Civil Rights Commission. A plaintiff could also sue his or her individual supervisor, which could prevent the employer from being legally allowed to transfer the case from state court to federal court. With the long statute of limitations, a plaintiff could bring claims four, five and even six years after leaving employment, meaning employer witnesses were likely long gone and key documents destroyed or deleted.
This article won't go into the details of every little nuance of the new law, but suffice to say that now, the Ohio Civil Rights Act is on par with its federal counterpart in many ways:
- Shorter statute of limitations. Ohio's six year statute of limitations to bring a civil action under the Ohio Civil Rights Act for workplace discrimination was among the longest in the country. It is now a two-year statute, similar to other types of tort claims.
- Filing requirement. Employment discrimination claims under the Ohio Civil Rights Act could previously be filed directly in court. Unlike the federal counterpart, an employee did not have to first file a charge with the Ohio Civil Rights Commission. If the employee now chooses to pursue the matter in court, the employee can request a "right to-sue" letter like Title VII, but the employee cannot go directly to court without first filing the charge with the Commission.
- Streamlines age discrimination claims. The new law eliminates the dual tracks of age discrimination claims under the Ohio law. This was a confusing part of the Ohio Civil Rights Act and a constant trap for the unwary plaintiff.
- Eliminates individual liability. An individual supervisor can still be liable under tort law theories, but the rule that an individual supervisor is an "employer" is now gone. As mentioned above, this can sometimes mean the difference between defending a lawsuit in state court and the employer's ability to transfer the case to federal court.
- Officially codifies Faragher/Ellerth affirmative defenses. Many are familiar with the U.S. Supreme Court's holding in the Faragher and Ellerth cases, wherein an employer has a defense to Title VII harassment claims when it can show that it had effective policies and complaint procedures in place and the employee failed to follow them. Now, an Ohio employer may raise the same affirmative defense to a state law harassment claim. The employer must show that it exercised reasonable care to prevent or promptly correct the behavior (i.e., had a policy and complaint procedure) and that the employee unreasonably failed to take advantage of the policy and complaint procedure (i.e., the employee was effectively trained on the policy but failed to act). Like the federal counterpart, this defense would not apply if the supervisor's harassment resulted in the employee suffering a tangible employment action, such as being demoted or passed over for a promotion.
The effective date of this new law is April 12, 2021. I would not be surprised if there is a flurry of new employment discrimination filings sometime in late March and early April. However, come spring this year, the landscape for civil rights claims is going to be different in Ohio. I doubt many employers will find this to be their focus with everything else going on, but it does provide some relief from procedural hurdles that had often left employers at a disadvantage.
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