Endorsing the Employment Law Uniformity Act

For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.

Yesterday, Senate Bill 268 was formally introduced in the Ohio Senate. It is a business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms, S.B. 268:

• Creates a universal 365-day statute of limitations for all employment discrimination claims.
• Eliminates individual statutory liability for managers and supervisors.
• Caps non-economic and punitive damages based on the size of the employer.
• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
• Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission or filing a discrimination lawsuit in court, with the filing of the former tolling the statute of limitations for the latter.
• Prioritizes mediation and conciliation for all charges filed with the OCRC, such that all but the most difficult of cases can be resolved efficiently and cost-effectively.
• 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.

This bill presents a tangible opportunity to fix a broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive business disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 268 restores balance and predictability for Ohio employers, while, at the same time, preserving the crucial right of employees to be free from discrimination in the workplace.

Focusing on the elimination of individual liability for discrimination claims, vocal opponents of S.B. 268 have already labeled this legislation as protecting sexual harassers. Nothing could be further from the truth. The legislation leaves intact all common-law remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, and invasion of privacy—along with the possibility criminal sanctions for the most egregious of misconduct. S.B. 268 merely brings Ohio in line with federal law and the law of almost every other state on this issue. It also harmonizes Ohio law on this issue, as the Ohio Supreme Court has already eliminated individual supervisor and manager liability for public officials.

Now comes the hard part—getting this bill passed. If you believe S.B. 268 presents the necessary reform of a broken system, call or email your state senator and urge him or her to support this bill. Getting S.B. 268 passed is a battle worth fighting to bring meaningful reform to a broken system.

 

Jon Hyman is a partner in the Labor & Employment group at Meyers, Roman, Friedberg & Lewis. He is also the author of the Ohio Employer’s Law Blog, which the ABA Journal recently named to its legal blog Hall of Fame.