March 20, 2017
Sweeping changes are being proposed to Ohio’s employment discrimination law by Ohio H.B. 2, which was introduced to the 132nd General Assembly in February 2017. The bill seeks to streamline the law, create parity between disparate federal and state statutes, and provide increased certainty to employers and employees alike.
Proposed changes include:
Statute of Limitations: H.B. 2 reduces the statute of limitations for civil lawsuits from up to six years down to one year, while simultaneously extending the statute of limitations for filing an Ohio Civil Rights Commission (“OCRC”) charge from 180 days to one year. In doing so, the bill provides a uniform and predictable limitations period for both avenues of redress.
Elimination of Dual Actions: H.B. 2 prohibits a discrimination claimant from filing a civil lawsuit in state court during the pendency of a related OCRC charge, and likewise prohibits a related OCRC charge during the pendency of a civil suit, thereby saving employers the burden and expense of simultaneously defending lawsuits and administrative actions that are based on the same allegations. Importantly, the bill preserves the ability to file a lawsuit after adjudication of a related OCRC charge by tolling the statute of limitations for civil suits while that OCRC charge is pending.
Elimination of Common Law Wrongful Discharge Claim: H.B. 2 eliminates the common law claim for wrongful discharge by specifying that the Ohio Civil Rights Act provides the sole and exclusive remedy for employment-related discrimination claims falling within the ambit of the Act.
Elimination of Individual Supervisor Liability: H.B. 2 revises the statutory definition of “employer” to exclude individuals acting in the employer’s interest, thereby eliminating the specter of being personally sued under the statute for actions taken as a supervisor or human resource professional. The change brings Ohio law into alignment with federal law. Notably, the bill specifies that it does not abrogate causes of action against individuals that exist outside the statute.
Continuity in Age Discrimination Claims: Ohio’s age discrimination law currently provides for multiple avenues of action and multiple limitations periods. H.B. 2 eliminates this uncertainty by normalizing age discrimination claims to provide the same remedies and limitations periods provided for other discrimination claims.
New Affirmative Defense: H.B. 2 creates an affirmative defense for employers to vicarious liability in certain hostile work environment actions. The defense is available where the employer proves: (1) it had an effective anti-harassment policy, (2) it properly educated employees about the policy and procedure, (3) it exercised reasonable care to prevent or promptly correct an unlawful practice, and (4) the complainant failed to take advantage of opportunities for preventative or corrective action. This affirmative defense parallels federal law.
Codification of Damage Caps: H.B. 2 specifically defines employment-related discrimination lawsuits as “tort actions,” which are governed by Ohio’s Trial Procedure Law (R.C. Chapter 2315). Among other things, this imposes R.C. 2315’s cap on damages.
H.B. 2’s future is not certain. A similar bill (S.B. 268) was introduced in the 131st General Assembly but expired at the end of that session without passage. H.B. 2 nevertheless enjoys wide support from employers and related associations, and has drawn formal praise from the Ohio Chamber of Commerce, the Ohio Society for Human Resource Management, the Ohio Manufacturers’ Association, the Ohio Restaurant Association, and the Ohio Farm Bureau. Opponents of the bill include the Ohio ACLU and the Ohio Civil Rights Commission, which claim H.B. 2 strips employee protections and leaves workers without redress for unlawful discrimination.
RCO Law will continue to monitor H.B. 2’s progress in the legislature. If you have questions or comments, please contact Attorney Chad M. Thompson.