Last week, Ohio House Bill 352 (the “Employment Law Uniformity Act”) was signed into law. The Employment Law Uniformity Act, updates Ohio’s anti-discrimination statute, shortens the relevant statutory periods of limitation, and prevents the simultaneous filing of administrative and judicial actions, among other things. The act also codifies an employer’s affirmative defense for sexual harassment hostile work environment claims and limits individual supervisory liability.
Administrative Filing
Before the Employment Law Uniformity Act, employees could sue their employer without filing a charge with the Ohio Civil Rights Commission (“OCRC”) or Equal Employment Opportunity Commission (“EEOC”). Employees now, generally, must first file a charge with the OCRC, and receive a notice of the right to sue from the OCRC, or request a notice of the right to sue from the OCRC, before suing their employer for discrimination.
Affirmative Defense
The Employment Law Uniformity Act codifies the affirmative defense available to employers when an employee claims that he or she suffered a hostile work environment based on sexual harassment where the hostile work environment was created by a supervisor. To use the affirmative defense, the employer must prove:
- The employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior.
- The employee alleging the hostile work environment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
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). This affirmative defense existed previously in common law but has now been codified – meaning employers should continue to require that employees promptly report claims of discrimination and harassment, and should continue to diligently investigate such claims.
Statute of Limitations
The statute of limitations for claims of discrimination is now two years whereas before the statute of limitations could have been as long as six years. This means employees have less time to file a charge or lawsuit claiming discrimination.
Supervisor Liability
In 1999, the Ohio Supreme Court found that supervisors can be individually liable for damages under Ohio’s anti-discrimination laws. The Employment Law Uniformity Act limits this individual supervisory liability. Under the act, a supervisor is only liable for claims of retaliation, “aiding and abetting” in discrimination, or other common law torts.
Takeaways
While the Employment Law Uniformity Act makes it more difficult for a plaintiff to bring a claim of discrimination, it does not eliminate such claims – meaning that employers should continue to enforce their anti-discrimination policies, promptly investigate claims of discrimination, and continue to train employees and supervisors in order to prevent discrimination and harassment from occurring in the workforce.