Included in the flurry of bills passed by the Ohio General Assembly at the end of 2020 was House Bill 352. The bill was signed into law by Gov. DeWine on January 12, 2021 and makes several significant changes to Revised Code Chapter 4112, which is Ohio’s employment discrimination law. The new law alters the way claims of employment discrimination are brought in Ohio and also the ways in which employers will defend against these claims. Below are the major changes made by H.B. 352.
OCRC Procedural Changes
Perhaps the most significant change made by H.B. 352 is the addition of administrative steps an employee must take before pressing their state law claims of employment discrimination in formal litigation. The new Ohio law mirrors the federal process by requiring employees to exhaust their administrative remedies by filing a charge of discrimination with the Ohio Civil Rights Commission (OCRC) first, prior to filing a lawsuit alleging workplace discrimination in court.
When a charge of discrimination is filed with the OCRC, the Commission first notifies the employer of the charge. Both the employer and the employee filing the charge will be offered mediation to quickly resolve the issue. If mediation is refused or is unsuccessful, the charge is assigned to an investigator, who will request a position statement from the employer. If the investigation finds probable cause that employment discrimination has occurred, the OCRC, represented by the Attorney General’s office, will pursue a complaint against the employer and a hearing will be held before an administrative law judge (ALJ).
However, if the investigation does not find probable cause, the OCRC will issue a right to sue letter to the employee who filed the charge. The charging employee may also request a right to sue letter which cannot be granted by the Commission until at least 60 days have passed since the filing of the charge. Whichever way they obtain the right to sue letter, employees may only file a discrimination lawsuit in court after the OCRC has issued a right-to-sue letter or 45-days have passed since they requested the letter. Previously, employees could simply file a lawsuit without ever filing a charge with the OCRC.
The requirement that Plaintiffs go through the OCRC process should result in fewer discrimination cases being brought to court. First, the process creates additional hurdles, but also because the OCRC process offers several offramps – like mediation and conciliation – which could prevent the charge from going all the way to court. Additionally, the changes may lower litigation costs because the OCRC process provides advanced notice of a discrimination allegation and describes the facts giving rise to the claim before a lawsuit is filed. Finally, the changes mean that employers may also raise failure to exhaust administrative remedies as an affirmative defense to discrimination lawsuits brought in court.
Supervisor Personal Liability & Cap on Damages
H.B. 352 additionally limits the personal liability for managers that act in a discriminatory manner. Mirroring the protection provided in federal discrimination claims, supervisors and managers cannot be held personally liable when they act in the interest of their employer. This statutorily provided personal immunity affords private employees the same protection that public employees were granted by the Ohio Supreme Court in 2014. See Hauser v. City of Dayton Police Dep’t, 140 Ohio St. 3d 268 (Ohio 2014). However, the immunity does not extend to supervisors that act outside the scope of their employment, retaliate against a complainant, or obstruct a complainant from pursuing a claim of discrimination with the OCRC.
By treating claims of workplace discrimination as tort actions, H.B. 352 limits recoverable noneconomic damages (e.g., pain, emotional anguish, reputational damage, etc.) based on the size of the employer. Now, these damages are limited to the greater value of $250,000 or three times the economic loss up to $350,000 for each plaintiff and $500,000 for each occurrence that is the basis of the action.
Affirmative Defense for Sexual Harassment
H.B. 352 also codifies an affirmative defense for claims of sexual harassment by a supervisor that is substantially similar to the affirmative defense available under federal law. An employer may raise this defense to a hostile work environment claim based on sexual harassment by a supervisor if it can show that: 1) the employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior; 2) the employee alleging the hostile work environment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
H.B. 352 does not clarify how an employer can exercise reasonable care to prevent or promptly correct any sexually harassing behavior. However, federal court decisions addressing the defense may provide clues as to what Ohio courts will be looking for when analyzing Ohio’s version of the defense. For instance, The Sixth Circuit Court of Appeals found that a policy which provides a process for employees to effectively report sexual harassment may provide a basis for the defense. Such a policy may take many forms, but “it should at least require supervisors to report incidents of sexual harassment, allow employees to make both formal and informal complaints of harassment, provide a method for employees to bypass a harassing supervisor when making a complaint, and provide for training concerning the policy.” Shields v. Fed. Express Customer Info. Servs., 499 Fed. Appx. 473, 478 (6th Cir. 2012).
Statute of Limitations
H.B. 352 also makes significant changes to the timing of both charges of discrimination and formal discrimination lawsuits. First, the bill extends the amount of time an employee has to file a charge of discrimination with the OCRC from 180 days to two years from the date of the alleged discrimination. Second, the bill significantly reduces the amount of time available for individuals to file a lawsuit from six years to two years. However, this two year statute of limitations is paused while a charge is pending before the OCRC.
Age Discrimination Claims
Prior to H.B. 352, state law claims of age discrimination could be pursued under multiple statutory provisions. This greatly complicates litigation due to the variations in procedural requirements and potential remedies. H.B. 352 fixes these issues by subjecting age discrimination to the same procedural requirements as other employment discrimination claims including a required filing with the OCRC and a two-year statute of limitation.
The provisions of the bill are set to take effect on April 15, 2021. The attorneys at Fishel Downey regularly advise employers on both federal and state employment discrimination laws. If you have a specific question regarding H.B. 352, or any other employment matter, and would like assistance, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.