February 24, 2021

Volume XI, Number 55

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Ohio Revamps Employment Discrimination Statutes

On January 12, 2021, Governor Mike DeWine signed into law House Bill (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 Ohio Revised Code 4112, which contains Ohio’s employment discrimination laws, in the following ways.

Mandates Filing of 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 coworker, unless that supervisor, manager, or coworker qualifies under the amended law as “the employer.”

Note, however, that supervisors, managers, or coworkers 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) “aid[ing] [and] abet[ting]” 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 2021. The new law does not state that it retroactively applies to causes of action currently being litigated.

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© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 20
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About this Author

Rebecca J. Bennett Employment Ogletree, Deakins, Nash, Smoak & Stewart Cleveland, OH
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There is a story behind every employment discrimination claim.  Rebecca is skilled at telling your side of the story.  She unravels allegations, sifts through facts, and marshals evidence to build a defense.  Rebecca is a trial lawyer.  Through experience and intuition, she is good at evaluating risks and drawing up a winning strategy, whether that means early resolution or preparing for a jury trial.  Clients appreciate Rebecca’s cool-headed counsel in times of workplace trouble and uncertainty.

Rebecca has spent her career representing and counseling employers nationally in all...

216-274-6903
Federico G. Barrera Labor & Employment Attorney Ogletree Deakins Law Firm Cleveland

Rico represents employers in all facets of employment law.  He provides proactive compliance counseling, and when necessary vigorously represents employers in all phases of litigation in both state and federal court, as well as before various administrative agencies such as the Equal Employment Opportunity Commission and the Ohio Civil Rights Commission.  He has experience handling labor disputes, employee grievances, and arbitrations, as well as defending employers against claims of discrimination, harassment,  and breach of contract.  He has also helped employers...

216-274-6906
Andrew S. Haring Employment Litigation Attorney Ogletree, Deakins, Nash, Smoak & Stewart Cleveland, OH
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Andrew represents employers in all types of employment litigation in both federal and state courts, in labor and employment arbitration proceedings, as well as before various administrative agencies, including the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Ohio Civil Rights Commission. He has experience defending employers against employment discrimination claims, sexual harassment claims, retaliation claims, claims under the Family and Medical Leave Act, wrongful discharge claims, and breach of contract claims. Andrew also has appellate experience...

216-274-6922
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