Ohio Revamps Employment Discrimination Statutes

On Jan. 12, Gov. Mike DeWine signed into law H.B. 352, which makes significant and sweeping changes to how employment discrimination claims will be handled in the state of Ohio. H.B. 352 amends pertinent sections of the Ohio Revised Code 4112—which contains Ohio's employment discrimination laws—in the following ways.

Mandates Filing Charge Before Filing Lawsuit

Employees alleging workplace discrimination in Ohio will now be required to first file a charge of discrimination with the Ohio Civil Rights Commission (OCRC) before initiating litigation in court. Previously in Ohio, employees were required to exhaust administrative remedies before filing federal discrimination claims yet could go directly to state court and file state discrimination claims.

Once this new law takes effect, an employee will now have to obtain a "notice of right to sue" from the OCRC before suing, which is similar to the process for filing federal employment discrimination claims. Upon receipt of a charge, the OCRC will investigate and render a determination. A claimant may request that the OCRC cease its preliminary investigation and issue a notice of right to sue.

Changes Definition of 'Employer'

The new law eliminates individual supervisor and co-employee liability. As a result, Ohio joins a list of states that do not permit an employee to make a claim of employment discrimination against a supervisor, manager or co-worker, unless that supervisor, manager or co-worker qualifies under the amended law as "the employer."

Note, however, that supervisors, managers or co-workers may still be charged with (1) retaliating against someone who opposes a discriminatory act or who participates in a charge of discrimination or for (2) aiding and abetting a discriminatory practice of the employer.

Reduces and Harmonizes Limitations Periods

Charges must be filed with the OCRC within two years of the alleged discriminatory practice. The new law harmonizes the statutes of limitations for all types of employment discrimination claims to two years from the alleged unlawful discriminatory practice. Previously, certain age discrimination claims had to be filed within 180 days of the adverse employment action, but discrimination claims related to other types of protected classifications had a 6-year statute of limitations. The limitations period for filing a lawsuit may be tolled for 60 days after the charge is no longer pending with the OCRC.

Codifies the Employer Affirmative Defense

The amended law codifies the employer affirmative defense to vicarious liability for hostile-work-environment sexual harassment allegedly caused by a supervisor. The affirmative defense requires the employer to show it "exercised reasonable care to prevent or promptly correct any sexually harassing behavior" and that the complainant "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

The new law will go into effect 90 days from the date the governor's office files the signed bill with the Ohio Secretary of State, likely in mid-April. The new law does not state that it retroactively applies to causes of action currently being litigated.

Rebecca J. Bennett, Federico G. Barrera and Andrew S. Haring are attorneys with Ogletree Deakins in Cleveland. © 2021 Ogletree Deakins. All rights reserved. Reposted with permission.