H.B. 352 Clarifies and Modifies Ohio’s Employment Discrimination Statutes

By Kathleen Minahan

On January 12, 2021, Governor DeWine signed into law H.B. 352 (the “Employment Law Uniformity Act”) which makes overdue changes and provides long-awaited clarifications to Ohio’s employment discrimination statutes.

Subject to two exceptions described below, an employee who wishes to pursue a claim for employment discrimination will now be required to exhaust administrative remedies by filing a charge of discrimination with the Ohio Civil Rights Commission within 2 years of the allegedly discriminatory practice.  A charge can be filed against an employer, an employment agency, personnel placement service, labor organization, or a person who is allegedly liable under R.C. 4112.02(I) (retaliation) or R.C. 4112.02(J) (unlawful employment practices or aiding/abetting discrimination).  The OCRC exhaustion requirement does not apply to employees who intend to pursue injunctive relief only, or to employees who timely filed a charge with both OCRC and EEOC and received a notice of right to sue from the EEOC.

The new law also reduces Ohio’s existing 6-year statute of limitations (for most employment discriminations claims) to a uniform 2-year statute.  However, the 2-year statute of limitations will be tolled by OCRC’s administrative proceedings from the date the charge is filed until no more than 60 days after the charge is no longer pending with the OCRC.

Additions to the Ohio Civil Rights Acts include an express adoption and codification of the Faragher/Ellerth defense from federal common law.  Thus, unless an employee experiences a tangible employment action, an employer may assert an affirmative defense to a hostile work environment sexual harassment claim (and apparently only a sexual harassment hostile work environment claim) by proving that: (1) the employer used reasonable care to prevent and promptly correct sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or failed to otherwise avoid harm.

Importantly, the new law supersedes the Ohio Supreme Court’s decision in Genaro v. Central Transp. Co., which held that a supervisor or manager could be held personally liable for discrimination as an “employer” under Section 4112.02.  The new law relieves supervisors, managers and employees from personal liability under Section 4112.02(A) through (F) unless the supervisor, manager or employee is also the employer.  However, personal liability is still a risk for supervisors, managers and other persons who act outside the scope of their employment, retaliate against an employee (R.C. 4112.02(I)) or aid, abet, coerce, compel or personally engage in an unlawful discriminatory practice (R.C. 4112.02(J)).

The new law makes the act’s statutory procedures and remedies the sole and exclusive procedures and remedies for employees who allege discrimination actionable under Chapter 4112; however, other statutory and common law claims that already can be brought against employers, supervisors, managers and employees remain unaffected, including public policy torts permitted by Collins v. Rizkana.

For more information on this legislation or other employment law questions, please contact Kathleen Minahan or David Smith directly, or call our Cleveland office at (440) 248-7906.

MRR Announces 2021 Ohio Super Lawyers & Rising Stars

Mazanec, Raskin & Ryder Co., L.P.A. is pleased to announce that seven attorneys have been selected to the 2021 Ohio Super Lawyers and Rising Stars lists. In the firm’s Cleveland office, Todd Raskin, John McLandrich, Frank Scialdone, and Jeffrey Kay earned Super Lawyer honors. In the Columbus office, Doug Holthus and Paul-Michael La Fayette were recognized as Super Lawyers, while Cara Wright was named a 2021 Ohio Rising Star. Each year, no more than five percent of lawyers in the state are named to the Super Lawyers list, and no more 2.5 percent are selected to the Rising Stars list.

 

Todd M. Raskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., and is based in the firm’s Cleveland office. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 39 years of private practice in many courts throughout Ohio and the Midwest and is a member of a number of professional organizations, including the American Board of Trial Advocates, the Association of Defense Trial Attorneys, the Federation of Defense and Corporate Counsel, and the Litigation Counsel of America. Mr. Raskin has earned his Super Lawyer rating 10 years in a row, beginning in 2012, for his work in State, Local & Municipal Law, Employment Litigation: Defense, and Professional Liability: Defense.

 

 

John T. McLandrich is a partner in the firm’s Cleveland office. His practice focuses on the representation of municipalities, including defending cases on behalf of police and public entities accused of violations of civil rights and in employment matters. For over 30 years John has handled matters including claims of jail suicide, police pursuit, false arrest, excessive force by police officers, and failure to properly train police officers. He has represented civil defendants in federal and state courts throughout Ohio, serving as lead trial counsel. He has represented clients in class action matters, including municipalities relating to class action sewer cases. His appellate experience consists of handling and arguing matters before the Sixth Circuit Court of Appeals, where he has argued over 100 cases, as well as hundreds of cases before many of Ohio’s Courts of Appeal, including the Ohio Supreme Court, where he has won eight favorable decisions. John has earned his 2021 Super Lawyer rating for his work in Civil Rights Law.

 

Frank H. Scialdone is a partner in the firm’s Cleveland office and focuses his practice on appellate advocacy in state and federal courts with an emphasis on employment law, constitutional torts (Section 1983), public entity defense, and insurance defense. He has handled more than 200 appellate cases in the Ohio Supreme Court, Ohio’s intermediate appellate district courts, and the Sixth Circuit Court of Appeals. He routinely consults with trial attorneys on error preservation and pre-appeal strategy. Frank has prosecuted and defended original actions (e.g., mandamus, prohibition, etc.) and has submitted amicus curiae (friend of the court) briefs on behalf of clients and organizations. He is one of the first attorneys to be certified as a specialist in appellate law by the Ohio State Bar Association. Frank has earned his 2021 Super Lawyer rating for his work in Appellate Law.

 

Jeffrey Kay, Administrative Partner for the firm’s Cleveland office, has been named 2021 Super Lawyer for his work in Civil Litigation: Defense. Mr. Kay represents insurance companies/risk pools and their insureds with respect to both first and third-party claims, including employment discrimination, professional liability, municipal liability, automobile negligence claims, general commercial matters, bad faith claims, uninsured/underinsured claims, products liability, wrongful death claims, commercial premises liability claims, and property and casualty claims. He also has significant experience counseling clients in insurance coverage matters, including the securing of declaratory judgments on policy interpretations. Mr. Kay has successfully handled cases before state and federal administrative agencies, with a focus on representing clients before the Equal Opportunity Employment Commission (EEOC) and the Ohio Civil Rights Commission (OCRC). He has achieved success on behalf of his clients before state and federal appellate courts, having successfully argued cases before most of the Ohio Appellate Circuit Courts.

 

Doug Holthus, Administrative Partner for the firm’s Columbus office, is listed as a 2021 Super Lawyer for his work in Civil Litigation: Defense. His primary areas of focus are professional negligence defense, employment, civil rights and government liability, construction claims litigation and general liability matters. He has tried, advocated and or arbitrated nearly one hundred cases before civil juries, administrative licensing (and other) boards and arbitration panels in Ohio, Illinois and California, in both state and federal court. Among other professional and civic activities, Doug is actively involved as a volunteer for The Miracle League of Central Ohio, serves as a coach/advisor for the Bishop Watterson High School / Ohio High School Mock Trial Teams, is a Columbus Bar Foundation Fellow, is past-Chair of the Columbus Bar Association’s Professionalism Committee, and previously served as a Member of the Board of Directors of the Professional Liability Defense Federation.

 

Paul-Michael La Fayette is a partner in the firm’s Columbus office and concentrates his practice on professional liability defense, including the defense of dentists, physicians, real estate agents and attorneys. He represents professionals in administrative licensure proceedings before their professional Boards. In addition to professional liability, Paul regularly represents governmental entities in litigation and as general counsel. He has extensive experience in representing clients in lawsuits involving professional malpractice, premises liability, contracts, employment, construction, civil rights, zoning, wrongful death and products liability. Mr. La Fayette has earned his Super Lawyer rating 10 years in a row, beginning in 2012, for his work in Professional Liability: Defense, Civil Litigation: Defense, and State, Local & Municipal Law.

 

 

Cara M. Wright, a Senior Attorney in the Columbus office, represents counties, municipalities, and their employees in a variety of cases, including claims related to alleged violations of the United States Constitution, violations of Ohio’s public record laws, and state law tort claims. She has successfully defended clients in cases involving the use of deadly force, jail suicides, and claims that inmates were provided inadequate medical care while incarcerated in county jails. Cara also represents public and private employers in cases alleging employment discrimination. Additionally, her experience includes representing professionals, including physicians, nurse practitioners, nurses, behavioral health specialists, accountants and attorneys, in claims of professional negligence. In addition to her representation of clients in state and federal court, she has also appeared in cases before the Ohio Civil Rights Commission and the U.S. Equal Employment Opportunity Commission. Cara has earned the 2021 Rising Stars honor for her work in State, Local & Municipal Law.

 

Ohio Super Lawyers and Rising Stars have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. For more information about Super Lawyers, visit SuperLawyers.com.

MRR Receives National & Regional “Best Law Firms” Rankings by U.S. News – Best Lawyers® for 2021

MRR named "Best Law Firms" U.S. News – Best Lawyers® 2021

Mazanec, Raskin & Ryder Co. L.P.A. (MRR) has been recognized in the U.S. News – Best Lawyers® “Best Law Firms” rankings for 2021. The Ohio-based law firm received both national and regional Tier 3 rankings for Transportation Law, as well as regional rankings for other areas of practice.

Law Firms that are ranked by U.S. News – Best Lawyers® are presented in tiers, and are listed on a national and/or regional scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Mazanec, Raskin & Ryder Co. L.P.A. has been ranked for 2021 in the following National and Regional Tiers:

  • National Rankings
    • Tier 3 in Transportation Law
  •  Regional Rankings
    • Cleveland-OH
      • Tier 1 in Civil Rights Law
      • Tier 2 in Insurance Law
      • Tier 2 in Product Liability Litigation – Defendants
      • Tier 3 in Transportation Law
    • Columbus-OH
      • Tier 2 in Commercial Litigation
      • Tier 2 in Insurance Law
      • Tier 2 in Medical Malpractice Law – Defendants
      • Tier 2 in Personal Injury Litigation – Defendants
      • Tier 3 in Education Law
      • Tier 3 in Transportation Law

Now in its 40th year, Mazanec, Raskin & Ryder Co., L.P.A. serves clients throughout Ohio from offices in Cleveland and Columbus. The firm provides insurance defense, public sector law, business and commercial law, employment and labor law, workers’ compensation, and general litigation services to regional and national industry leaders, organizations, and individuals. 

Todd Raskin Featured in Super Lawyers® Article “Defending a Municipality from Section 1983 Lawsuits”

MRR Partner and Civil Rights Law expert, Todd M. Raskin, has defended civil rights claims for more than 30 years. In this week’s Super Lawyers® article “Defending a Municipality from Section 1983 Lawsuits,” he explains what municipalities should know about defending Section 1983 lawsuits and how civil rights claims proceed in Ohio.

Passed as a part of the Civil Rights Act of 1871, 42 U.S. Code § 1983—or, as it is more commonly referred to, “Section 1983”—is the main legal tool that individuals have to hold local governments and local government agencies legally liable for a civil rights violation. “It doesn’t create any substantive rights for anybody,” Raskin explains. “It’s a federal statute which provides a vehicle for people who claim that their constitutional rights have been violated.”

Read the full story here: https://www.superlawyers.com/ohio/article/defending-a-municipality-from-section-1983-lawsuits…

 

Todd M. Raskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., and is based in the firm’s Cleveland office. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 40 years of private practice in many courts throughout Ohio and the Midwest and is a member of a number of professional organizations, including the American Board of Trial Advocates, the Association of Defense Trial Attorneys, the Federation of Defense and Corporate Counsel, and the Litigation Counsel of America. Todd has earned his Super Lawyer rating for 9 years in a row, beginning in 2012, for his work in State, Local & Municipal Law, Employment Litigation: Defense, and Professional Liability: Defense.

COVID-19 / Immunity; Civil Liability Relief for Ohio Businesses and Others

Ohio H.B. 606 became law effective September 14, 2020. Equally important, the new law’s protections have been made retroactive to March 9, 2020 – the date of Governor Mike DeWine’s first Executive Order relating to the pandemic. The law provides businesses, schools and health care workers relatively broad and comprehensive civil immunity from liability for injuries allegedly related to COVID-19 exposures. The law is similar to others enacted in a growing number of jurisdictions. Under this new Ohio law, individuals, businesses, schools and health care providers generally cannot be held liable for injuries or deaths caused by the transmission of COVID-19 unless the complaining party can show that the alleged condition resulted from “reckless conduct or intentional misconduct or willful or wanton misconduct.” In this regard and among other defined terms, the new law provides the following: “reckless conduct” means a “heedless indifference to the consequences” of the risk of possibly causing an exposure to the COVID-19 virus.

If you have any questions about this update, you are invited to contact an attorney at Mazanec, Raskin & Ryder Co., L.P.A. for assistance.

Ohio Lawmakers Propose New Police Reform Legislation

By: Ryan Bockmuller

Recently, the Ohio Legislature has introduced a number of police reform bills which, if passed, could materially impact the provision of police services in the State of Ohio.

House Bill 706, introduced by Rep. Erica Crawly (D – Dist. 26) and Rep. Thomas West (D – Dist. 49), seeks to enact R.C. § 109.749 which would require peace officers to complete training on de-escalation techniques, implicit bias, procedural justice, and mental health issues, to require information regarding mental health resources and available support be provided to peace officers annually, and to make an appropriation.  While the Bill has been introduced in the House, it has not yet been put to a vote. The Bill would need to pass both the House and the Senate before being presented to the Governor for signature.  If passed, this Bill would have a limited impact on the day-to-day procedures of police because it only mandates additional training for officers.  When factoring in the current political climate surrounding the need for police reform, it is possible such a bill could resonate with voters in an election year and gain enough support to become law.

House Bill 710, introduced by Rep. Terrence Upchurch (D – Dist. 10) and Rep. Sedrick Denson (D – Dist. 33), would amend numerous sections of R.C. § 109, R.C. § 2933, and R.C. § 5503 to prohibit police officers from “engaging in biased policing and other status-based profiling and to require the attorney general’s office to establish rules regarding such police practices.” This Bill has been introduced in the House and has not yet been put to a vote; however, the Bill is unlikely to pass Ohio’s Republican controlled legislature, as written.  The Bill is likely too intrusive into the operations of many police forces to be practical and enforcement would be a challenge, due to the subjective nature of bias.  Even if passed, it is likely that Governor DeWine, a former prosecutor and attorney general, would veto this Bill due to the challenges presented with enforcement and the stark changes to police procedure that would be required.

House Bill 713, introduced by Thomas West (D – Dist. 49) and Rep. David Leland (D – Dist. 22), would seek to enact R.C. § 109.70 which would prohibit the use of arrest and citation quotas for law enforcement agencies.  The Bill has been introduced in the House and has not yet been put to a vote.  Again, this bill is unlikely to pass Ohio’s Republican controlled legislature as written.  As with HB 710, it is likely too disruptive to the operations of many police forces to be practical, a factor which would likely prevent Governor DeWine, a former prosecutor who understand the needs of law enforcement, from signing the bill into law, even if passed.

House Bill 421, introduced by Rep. Todd Smith (R – Dist. 43) and Rep. Gil Blair (D – Dist. 63), would extend civil and criminal immunity, under R.C. § 2744.01, et seq., to political subdivisions for the acts of hospital police officers acting directly in the discharge of the person’s duties as a police officer and that occurs on the premises of the hospital, or elsewhere, when directly related to the role of being a hospital police officer.  This bill has also narrowed the definition of “emergency call,” as stated in R.C. § 2744.01, to mean “communication from a citizen, police dispatch, or a personal observation by a peace officer only if that communication, dispatch, or personal peace officer observation involves or concerns an inherently dangerous situation that demands an immediate response on the part of a peace officer.” H.B. 421 at p. 2.

The current definition of “emergency call” is “a call to duty, including but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.” R.C. 2744.01(A).  The Bill has passed the Ohio House unanimously with bipartisan support, 94-0, and is now in committee in the Ohio Senate.  Due to unanimous support in the House, this legislation is very likely to pass through the Senate and be signed into law by Governor DeWine.  Even if the Governor did attempt to veto the Bill, the Governor’s veto may be overturned with a three-fifths majority in both houses.

For more information on any of this legislation or how it may impact police departments, please contact Mazanec, Raskin & Ryder, Co. L.P.A. at (440) 248-7906.

Opioid Epidemic; Pharmaceutical Distributor and Insurance Coverage; Ohio First Appellate District

By Cara Wright

On June 24, 2020, the Ohio First District Court of Appeals held in Acuity v. Masters Pharmaceuticals, Inc., 1st Dist. Hamilton No. C-190176, 2020-Ohio-3440 that an insurer has a duty to defend an insured pharmaceutical distributor in lawsuits brought by governmental entities for costs incurred combating the opioid epidemic.

This declaratory judgment action arose from underlying litigation filed by the states of West Virginia, Michigan and Nevada, alleging that the insured – in this case, Masters Pharmaceuticals, Inc.  –  acted negligently in failing to investigate, report and refuse to fill suspicious orders of prescription opioids and that the failures to do so contributed to the opioid epidemic, resulting in increased costs for police patrols, judicial expenditures, person and public-works expenditures, substance-abuse treatment and emergency and medical-care services.

The provision of the particular policy at issue provided that the insurer would pay “sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.”  The insurer argued that the policy did not require defense of the claims asserted by the states of West Virginia, Michigan and Nevada because they were seeking to recover their own economic losses, and not losses resulting from any ‘bodily injury’.

The First District rejected this argument. Instead, the Court held that while the governmental entities were seeking to recover their own economic losses, some of those losses (e.g., medical expenses and treatment costs) arose “because of” bodily injury.  As a result, the Court found that the claims fell within the terms of the policy and that the insurer owed its insured a duty to defend.

The insurer also argued that its insured knew about the potential harm to individuals from the ingestion of opioids and that, as a result, the claims by the governmental entities were excluded under a policy “loss-in-progress” clause.  The First District rejected this argument, too, finding instead that this policy provision was not an exclusion, but instead was a prerequisite to establishing coverage. In particular, the First District held that, although the insured may have been aware there was a risk that if it filled suspicious orders diversion of its product could contribute to the opioid epidemic; nevertheless, the mere knowledge of this fact was not sufficient to bar coverage under the policy’s “loss-in-progress” provision.  Thus, the insurer was found to have a duty to defend its insured from the claims brought by the governmental entities.

For more information, please feel free to contact Doug Holthus (Columbus, OH) at dholthus@mrrlaw.com or Joseph Nicholas (Cleveland, OH) at jnicholas@mrrlaw.com.

Title VII Protects Homosexual and Transgender Workers

Yesterday, the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act applies to discrimination based on sexual orientation and gender identity. Title VII outlaws discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Until yesterday, federal courts across the country were divided on whether Title VII also protects LGBTQ employees from adverse employment actions based on their sexual orientation and gender identity. The Supreme Court ruled in a 6-to-3 majority that it does.

One of the cases presented to the Supreme Court arose from an appeal from the Sixth Circuit (whose jurisdiction includes Ohio).  In that case, Employer R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” The Sixth Circuit ruled in March 2018 that Title VII’s “discrimination by sex” does include transgender persons.

The Supreme Court arrived at its conclusion in part because Title VII already prohibits employment discrimination based even partially on sex. Discrimination against people for being homosexual or transgender is at least partially based on the person’s sex. It therefore follows that Title VII prohibits firing a person for being homosexual or transgender.

The Supreme Court concludes: “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” The Supreme Court’s dissent concedes that LGBTQ employees deserve to be treated fairly in the workplace but argue that the text of Title VII does not protect such employees. They also argue that the Court’s majority opinion legislates new law, violating separation of powers.

Because the Sixth Circuit held in 2018 that Title VII protects transgender employees, Ohio employer policies and practices should already be in compliance with yesterday’s Supreme Court decision.  While Congress has not expressly changed the text of Title VII to include references to sexual orientation or gender identity, employers must ensure that they are not taking any adverse employment action against employees in whole or in part because of their sexual orientation or gender identity.  Employers may wish to update their employment policies to expressly include these characteristics, but at a minimum must ensure that their practices comply with the law.

The full text of the Supreme Court’s opinion is available here.

Continue following Mazanec, Raskin & Ryder for updates on this and other changes in the law. For advice that is specific to your circumstances, please contact one of our attorneys.

This update is not intended to constitute legal advice or form an attorney-client relationship.

New Ohio Tax Law May Alter Municipal Income Tax

HB 197 went into effect on March 27, 2020. This is a new Ohio law that may alter the way municipalities collect income tax as a result of the COVID-19 emergency.

The Ohio Legislative Service Commission stated in its Final Analysis that the new law redefines “principal place of work” as the city where homebound workers live.

This means that many employees whose taxes are normally withheld in the city where they work may be entitled to a refund next fiscal year for the time they spent working from home. The cities where homebound workers live may also be entitled to reimbursement from the cities where the employees normally work.

According to a recent article, the new law will most likely result in mass tax refunds and cities losing significant municipal tax revenue. In Cleveland, for example, more than 85% of the city’s income tax is generated from withholdings collected from employees commuting into the city.

Municipalities may wonder what they can do to avoid mass refunds, class action lawsuits, and other litigation. It is too early to speak in general terms of the consequences of this law. The issues it presents are so complex that no two cases will be alike.

Continue following Mazanec, Raskin & Ryder for updates on this and other changes in the law. For advice that is specific to your circumstances, please contact one of our attorneys.

This update is not intended to constitute legal advice or form an attorney-client relationship.