Governor DeWine Signs Employment Law Uniformity Act into Law
On January 12, 2021, Governor Mike DeWine signed House Bill 352 (“HB 352”), the Employment Law Uniformity Act, into law. It will go into effect April 12, 2021 and apply to discrimination claims filed on or after that date. The new law provides much needed clarity to employers while still protecting employees’ rights to challenge workplace discrimination. The following are highlights of the new law.
Elimination of Personal Liability for Managers and Supervisors
Under the new law, managers and supervisors can no longer be held individually liable for violation of employment discrimination laws (with a few exceptions), consistent with federal law. Managers and supervisors therefore can make decisions free from fear of liability provided that they are not retaliating against an employee for opposing a discriminatory practice, acting outside the scope of their employment, or otherwise aiding in a discriminatory practice.
Failure to Exhaust Administrative Remedies
Akin to the requirement for most federal discrimination claims, before an individual can file an employment discrimination lawsuit, they must now file an administrative charge with the OCRC and one of the following must apply:
- The person has received a notice of right to sue from the OCRC;
- The person has requested a notice of right to sue and the OCRC fails to issue a notice within 45 days; or
- The OCRC determines there is probable cause that an unlawful discriminatory practice has occurred and the person elects to file a suit.
HB 352 creates exceptions to the above scenarios where the person seeks only injunctive relief or has received a right to sue from the U.S. Equal Employment Opportunity Commission (EEOC).
Statute of Limitations Shortened
HB 352 shortens the statute of limitations for employment discrimination lawsuits from six (6) years to two (2) years after the alleged discriminatory act occurred. The statute of limitations is tolled while the charge is being investigated by the OCRC.
Prescribes Affirmative Defense
The new law provides an affirmative defense for employers in hostile work environment harassment claims. The employer must (1) show that the employer exercised reasonable care to prevent or promptly correct any harassing behavior and (2) show that the employee alleging the hostile work environment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. The intent of this new legislation, aligning to the Faragher/Ellerth affirmative defense under federal law, is to encourage the implementation of effective anti-discrimination policies and promote the resolution of issues within the workplace.
Reduces Availability of Age Discrimination Lawsuits
HB 352 finally provides a clear path for pursuit of an age discrimination claim. Previously, there were three different statutory avenues for age discrimination claims. Now, age discrimination claims are treated as other protected class status discrimination claims, subject to a 2-year statute of limitations and requiring exhaustion of administrative remedies.
Available Remedies for Employment Discrimination Lawsuits
HB 352 now classifies employment discrimination lawsuits as a “tort action” making them subject to previously enacted tort reform limits on liability. Thus, the following applies to available remedies:
- Compensatory damages for the plaintiff’s economic loss (lost wages, salary, or other compensation and expenditures) are not limited;
- Compensatory damages for the plaintiff’s noneconomic loss (pain and suffering, loss of consortium, and mental anguish) cannot exceed the greater of $250,000 or an amount that is equal to three times the plaintiff’s economic loss, as determined by the trier of fact (a jury or a judge in a nonjury trial), to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence that forms the basis of the tort action;
- Punitive or exemplary damages cannot exceed two times the amount of the compensatory damages awarded to the plaintiff or 10% of a small employer’s or individual’s net worth when the tort was committed, to a maximum of $350,000, unless the tort action was committed “purposely” or “knowingly.”
This new law was years in the making and a welcome update to Ohio’s employment discrimination laws, aligning them with federal employment discrimination laws. If you would like additional guidance on how to navigate these changes in the law or any other employment issues, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.