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.