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Employment Law Uniformity Act: Questions and Answers for Ohio Employers

On January 12, 2021, Governor Mike DeWine signed the Employment Law Uniformity Act, H.B. 352.  This significant piece of legislation represents a key victory for Ohio employers in the area of employment discrimination law.   The following question-and-answer sheet for Ohio employers summarizes the important changes under H.B. 352.

Can a person still file an employment discrimination lawsuit in court without first filing a claim with the OCRC?

No.  With two exceptions described below, a person who believes that he or she has been the victim of an unlawful discriminatory practice in the workplace must first file a charge with the Ohio Civil Rights Commission (OCRC).  There are only two exceptions:

• The person seeks only injunctive relief, not monetary damages; or
• The person has filed a timely charge with both the OCRC and the Equal Employment Opportunity Commission (EEOC) based on the same facts, and the EEOC has issued a notice that the person may file a lawsuit based on the EEOC charge.[i]

A person can file a lawsuit for injunctive relief and later amend the lawsuit to include a claim for monetary damages, but the amendment will not relate back to the date of the original filing until the person has timely satisfied one of the administrative prerequisites listed below.[ii]

When can a person file a lawsuit based on an unlawful discriminatory practice relating to employment?

Subject to the two exceptions listed above, a person cannot file a lawsuit based on an unlawful discriminatory practiceunless the person has first filed a charge with the OCRC and satisfied one of the following administrative prerequisites:

• The person has received a “notice of right to sue” from the OCRC authorizing the lawsuit;
• The person has requested a notice of right to sue, and the OCRC has failed to issue the notice within 45 days after the date that the OCRC may grant the request, which must be at least 60 days after the person filed the charge[iii]; or
• The OCRC has made a determination of probable cause that an unlawful discriminatory practice has occurred or is occurring, and the person elects to file a lawsuit and notifies the OCRC.[iv]

If a person files a lawsuit without first filing a charge with the OCRC and meeting other prerequisites, the employer can move the court to dismiss the lawsuit for failure to exhaust administrative remedies.  Additionally, once a charge is filed, the OCRC must notify the person that he or she may not file a lawsuit until one of the prerequisites has been met, or one of the two exceptions applies.[v]

What is the statute-of-limitations for bringing a civil action based on an unlawful discriminatory practice relating to employment?

2 Years.  An employee has two (2) years after an alleged unlawful discriminatory employment practice was committed to file a lawsuit.[vi]  This represents a change from Ohio’s current six-year statute-of-limitations period.  The two-year statute-of-limitations applies whether the employee files suit under state or federal employment discrimination law. [vii]  It also applies to all age discrimination claims.[viii]

Filing a charge with the OCRC expands this limitations period. The statute of limitations is tolled for the duration the charge remains pending with the OCRC. [ix]   If the OCRC charge is filed less than 60 days before the statute-of-limitations expires, the statute-of-limitations is extended for an additional 60 days after the charge is no longer pending with the OCRC.[x] 

How long does an employee have to file a claim with the OCRC?

2 years.  An employee has two (2) years after an alleged unlawful discriminatory employment practice was committed to file an employment discrimination charge with the OCRC.[xi]  This represents a change in the law, which required a charge to be filed within six (6) months after the alleged unlawful discriminatory practice occurred.

Are supervisors still individually liable for employment discrimination claims?

No.  Under H.B. 352, a person no longer has a cause-of-action or claim for employment discrimination against a supervisor, manager, or other employee.[xii] The act now excludes managers, supervisors, and employees from personal liability for unlawful discriminatory practices unless that supervisor, manager, or other employee is also the employer or the employer’s agent.[xiii]  Prior to enactment of the act, Ohio law defined “employer” broadly to include any person acting directly or indirectly in the interest of an employer,” opening supervisors to personal liability.[xiv]

There are exceptions.  Individual supervisors and managers can still face personal liability based on retaliation for opposing or reporting a discriminatory practice; for aiding, abetting, inciting or coercing a discriminatory practice; or for obstructing a person from complying with Ohio civil rights law.[xv]

This applies equally to lawsuits and charges before the OCRC.  An employee may only pursue charges against a supervisor if that supervisor has retaliated against the employee for opposing an unlawful practice, or the employer has somehow aided or coerced the discrimination.[xvi]

What happens if a person claims a supervisor is creating a hostile work environment through sexual harassment?

The act states that an employer’s human resource professionals should have the first opportunity to resolve issues in the workplace before those issues result in costly litigation.[xvii]  An employer has a defense to a charge of hostile work environment sexual harassment if the employer can prove: 1) that the employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior; and 2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.[xviii]  This defense is not available if the supervisor’s harassment resulted in a tangible employment action against the employee, such as firing, failure to promote, or a change in responsibilities.[xix]

Can an employee who believes he or she has suffered discrimination still file other types of employment discrimination claims, such as claims for common law wrongful discharge?

No. The act provides that the procedures and remedies for unlawful discriminatory practices relating to employment provided for in the act are the employee’s sole and exclusive remedies for employment discrimination.[xx]  An employee may not, for example, bypass the administrative filing requirements by filing a claim for wrongful discharge under the Ohio common law.

When does H.B. 352 take effect?

House Bill 352 takes effect on April 15, 2021.

If you have any questions or need information, please contact either Lynn Schonberg, Nick Nykulak, or Sean S. Kelly at Ross, Brittain and Schonberg Co. LPA.

This Question & Answer Sheet for Ohio Employers is for informational purposes only, and does not constitute legal advice.

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[i] R.C. 4112.052(B)(2).

[ii] R.C. 4112.052(B)(3).

[iii] R.C. 4112.051(N).

[iv] R.C. 4112.051(B)(1). 

[v] R.C. 4112.04(A)(11).

[vi] R.C. 4112.052(C)(1).

[vii] R.C. 4112.052(D).

[viii] R.C. 4112.14(E).

[ix] R.C. 4113.052(C)(2)(b).

[x] R.C. 4112.052(C)(2)(a).

[xi] R.C. 4112.051(C)(2); R.C. 4112.08(A).

[xii] R.C. 4112.01(A)(2).

[xiii] R.C. 4112.08(A), R.C. 4112.01(A)(2).

[xiv] R.C. 4112.01(A)(2).

[xv] R.C. 4112.01(A)(24)(b); R.C. 4112.02(I)-(J); 4112.052(B)(4). 

[xvi] R.C. 4112.051(C)(1)(b). 

[xvii] Act, Section 3.

[xviii] R.C. 4112.054(B).

[xix] R.C. 4112.054(C).

[xx] R.C. 4112.08(B).