Ohio Employment Law Reform Bill Introduced: SB 383 Strikes Fair Balance Between Employers and Employees
Kegler Brown E-mployment Alert November 26, 2012
Employment laws at the federal and state level were enacted more than 50 years ago to protect jobseekers and workers from discrimination in the workplace. These laws require employers to make employment decisions based on criteria such as education, matching worker qualifications with the right position, job performance and employee conduct, rather than immutable characteristics like race, color, religion, sex, military status, familial status, national origin, disability or ancestry.
Unfortunately, over the last 20 years several Ohio cases and lack of legislative reform has swung the pendulum balancing employer and employee rights significantly in favor of workers. A recent bill introduced in the Ohio Senate, SB 383 sponsored by Sen. Bill Coley (R-Middletown), seeks to implement much-needed reform in Ohio’s law. Such reforms are needed to strike a balance between an employer’s ability to run his or her business and an employee’s right to be free of discriminatory practices in the workplace.
What does SB 383 do?
Statute of Limitations - SB 383 accepts the Ohio Supreme Court’s invitation to set a reasonable statute of limitations for employment discrimination claims. In 1994, the Court in Cosgrove vs. Williamsburg of Cincinnati, Inc. fell back on Ohio’s six-year general statute of limitations for all employment actions because there was no statute of limitation under ORC Chapter 4112; not surprising since the statute was never intended to allow lawsuits. SB 383 would create a universal 365-day statute of limitations for all employment discrimination claims. This timeframe is longer than the 300-day limitation under federal law and longer than the 180-day statute for age discrimination, workers’ compensation retaliation and whistleblower claims.
OCRC or court? - In 1991, the Ohio Supreme Court in Elek v. Huntington National Bank decided that individuals could file an employment discrimination claim directly in court instead of going through the administrative process at the Ohio Civil Rights Commission (OCRC). This decision causes several problems. First, neither the OCRC nor any other body can tell you how many employment discrimination claims are filed in Ohio courts. SB 383 doesn’t address this issue, but it should. The second problem is that allowing employees to file in both the administrative process (with the OCRC) and directly in court prolongs final resolution of alleged discriminatory practices and unnecessarily wastes time and resources of defending claims in two forums by employers, employees and the OCRC. SB 383 requires individuals to elect between filing an administrative charge with the OCRC or filing a discrimination lawsuit in court, and making clear that the election of one bars the other. If an individual decides to file with the OCRC, SB 383 prioritizes mediation and conciliation for all charges filed with the OCRC to help resolve issues more expeditiously directly with the parties in the best position to do so – employers and employees.
Limits on damages - Prior to the Elek case in 1991, claimants were limited to “make whole” awards for economic damages through the OCRC administrative process in discrimination cases for things like back pay, benefits or front pay. The new private right of action gave claimants the right to pursue unlimited non-economic and punitive damages that were not available through the OCRC process. In the same year, Congress enacted the Civil Rights Act (CRA) of 1991 that contained limitations on non-economic and punitive damages based on the size of the employer. The CRA passed the U.S. House in a bipartisan manner with 252 Democrats and 128 Republicans supporting the bill. SB 383 establishes the same reasonable limitations on such damages for Ohio employment discrimination cases.
Statutory claims only – Again in the Elek case, the Ohio Supreme Court created a new cause of action against employers called “discharge in violation of public policy.” This new case law has caused heartburn for many HR professionals for decades since you could be complying with every local, state and federal law and the court could still find a discriminatory practice violation. In the 1997 Ohio Supreme Court Kulch v. Structural Fibers, Inc. decision, a plurality of Justices commented that “piggybacking” public policy claims was acceptable in the absence of a declaration by the Ohio General Assembly that the statute was the sole and exclusive remedy for employment discrimination actions. SB 383 accepts that invitation by making it clear that employment discrimination claims are based on the statute and does not include nebulous “public policy” claims.
Affirmative defenses for proactive policies - HR professionals are the guardians of an employee’s civil rights. But, even after fully complying with all local, state and federal employment laws your day can still be ruined when the courier walks into your office to serve notice of a lawsuit filed by an aggrieved employee without ever being made aware there was a problem in the workplace. SB 383 doesn’t stop the employee from filing such a lawsuit, but it provides the employer an additional line of defense when the employee did not follow an employer’s policy for reporting problems in order to provide the employer the opportunity to remedy the situation before involving the OCRC or the legal system. Again, the employer and the employee are in the best position to address workplace concerns. SB 383 establishes an affirmative defense to claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.
No liability for managers and supervisors - One of the most controversial provisions in SB 383 would eliminate individual liability for managers and supervisors for employment discrimination actions. Until 1999, state and federal law directed that employment discrimination claims be filed against the employing company. Both laws recognized that employers could be held vicariously liable for the acts and omissions of employees. In 1999, however, the Ohio Supreme Court in Genaro v. Central Transport, Inc. dramatically widened the scope of the law by allowing claimants to also sue individual managers and supervisors for discrimination. Today, claimants typically name several coworkers and managers, as well as the company, to increase pressure for a settlement. Managers, human resources professionals, company owners and coworkers can be intimidated and discouraged from making effective business decisions for fear of being named in a lawsuit. SB 383 does not eliminate liability of the company. In addition, in even the most egregious cases the bill does not limit an individual’s right to file common law tort claims like assault, battery, and emotional distress against a coworker acting outside of the scope of employment.
Regardless of what the opponents may say, SB 383 enacts sensible reforms to Ohio’s employment laws. The bill does so by overruling, limiting or clarifying several bad Court decisions. It also protects employee’s civil rights while balancing and simplifying the law for Ohio employers.
By the end of 2012, the 129th General Assembly will finalize its business when both the House and Senate adjourn “sine die”. I’m relatively certain SB 383 will not be enacted by then. But, regardless of what opponents to such reforms say, they are necessary to provide balance between employer and employee rights. HR professionals are encouraged to contact their House and Senate members to ensure these employment law reforms remain a top concern for Ohio lawmakers.
Tony Fiore is an attorney with the law firm of Kegler, Brown, Hill & Ritter, Co., L.P.A. Mr. Fiore focuses his practice on government affairs, labor & employment law and international business. He can be contacted at (614) 462-5428 or firstname.lastname@example.org.