Recently, Governor Mike DeWine signed into law the Employment Law Uniformity Act. This Act amends the employment protections in the Ohio Civil Rights Act in multiple respects, which include expanding the statute of limitations and clarifying administrative procedures and remedies. The purpose of Ohio’s new law is to conform more closely to federal Equal Employment Opportunity (EEO) laws. The law went into effect on April 13, 2021.
Statute of Limitations. Prior to the passage of the Act, Ohio’s statute of limitations for an employment discrimination lawsuit was six (6) years to file a charge. Now, because of the Uniformity Act, it has been reduced to two (2) years. The six-year limitation period had been among the longest in the United States. And although the new limitations period is shorter, it is still significantly longer than the Title VII limitations period (which is 300 days) and that of most states (which are usually around 180 days).
The new law also extends the deadline for filing a charge with the Ohio Civil Rights Commission (“OCRC”). As explained in greater detail below, employees now must file an OCRC charge before filing a lawsuit directly against an employer. The Act expanded the deadline from 180 day to 2 years after the alleged discrimination occurs.
Exhaustion of Administrative Remedies. The new law also requires claimants to “exhaust administrative remedies” before bringing an action in court. That means the claimant must first file a claim with the OCRC before filing a complaint. This new requirement mirrors the federal rule which requires employees to file complaints with the Equal Employment Opportunity Commission (“EEOC”) before initiating a lawsuit.
However, under the new Ohio law there is an exception to this requirement. If the plaintiff (1) is only seeking injunctive relief or (2) has filed a charged with both the OCRC and EEOC, and the EEOC has issued a notice that the person may file a lawsuit.
In all other cases, once OCRC determines the suit can stand, it will provide the claimant with a “right-to-sue-letter.” This letter is required in order for a plaintiff to initiate a lawsuit in court. The exhaustion of administrative remedies before filing a lawsuit is an added layer of protection for employers. This shields them from frivolous lawsuits being filed in court if a claim does not pass the threshold investigation by the OCRC.
Supervisory Personal Liability. Over twenty years ago, the Ohio Supreme Court held that supervisors can be individually and personally liable for damages under Ohio’s anti-discrimination laws. This new Act limits a supervisor’s personal liability. Now, a supervisor is only liable if (1) they also act as the employer; (2) the supervisor retaliated against the employee; and/or (3) the supervisor acted outside of the scope of their employment. Supervisors may still be liable under other common law tort laws also.
Affirmative Defenses for Employers. The Uniformity Act also gives employers a new codified affirmative defense to sexual harassment claims. Under the new law, an employer can avoid vicarious liability from a hostile environment harassment claim if the employer:
- Had an anti-harassment policy in place;
- Properly educated employees about the procedure and complaint process;
- Exercised reasonable care in preventing or correcting harassment in the workplace; and
- The Employee failed to invoke the complaint procedure or other preventive or corrective opportunities.
This affirmative defense is not available to an employer if the supervisor’s harassment resulted in a tangible employment action against the employee (i.e., firing, demotion, change in responsibilities, etc.).
Effective Date. The effective date of this Act was on April 15, 2021. Allotta | Farley recommends that employers review and/or amend their policies and procedures to ensure that they have the necessary policies and procedures in place. As noted above, such procedures can shield an employer from liability for sexual harassment claims.