The Ohio Employment Law Uniformity Act (ELUA), H.B. 352, effective April 2021, provides much needed change and clarification of Ohio’s discrimination laws.[1] The reforms make Ohio law more uniform with existing federal standards and clarify arcane processes and time periods for asserting claims, including claims against other managers and employees. The reforms helpfully encourage the resolution of claims by human resources personnel without costly litigation. To that end, the new law rewards employers for implementing meaningful antidiscrimination policies and practices that foster a fair work environment. The following summary outlines some of the more important reforms and provides action items for employers to consider.

Statutory Adoption of Affirmative Defenses

Ohio currently provides no statutory affirmative defense to hostile work environment and harassment-type claims. The well-established Faragher/Ellerth[2] defense at the federal level is not currently codified in Ohio. Under the ELUA, however, a similar defense will be codified.

The defense is available to employers who can show (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) the employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities. The new law provides incentives for employers to build strong anti-harassment policies and to revisit the policies (and practices) to ensure they are being utilized properly. In addition, this new law serves as a reminder for employers to analyze levels of responsibility in the workforce to avoid strict employment law liability. Steps should be taken to ensure that employees controlling work assignments are not deemed “supervisors” in order to avoid strict employer liability for workplace misconduct.[3]

Limitations Periods

Ohio’s six-year statute of limitations on civil actions for employment discrimination claims is one of the longest in the nation. ELUA reduces the applicable statute of limitations to two years in most cases. This does, however, coincide with an expansion of the time limit to file a charge of discrimination with the Ohio Civil Rights Commission to two years.

This is great news for employers. Defending claims based on events from six years prior is often unfair for employers who must piece together records that may have been lost or destroyed over such a long time period. In light of this new law, employers may wish to reevaluate record retention policies and practices, ensuring that records are properly retained as needed for compliance and that information is not retained longer than necessary.

New Filing Requirement for Claimants

An individual currently may file a lawsuit alleging employment discrimination without first going through the Ohio Civil Rights Commission. Per ELUA, the filing requirement will now essentially mirror federal requirements to require exhaustion of administrative remedies. Plaintiffs thus will now have to file a charge of discrimination before bringing a lawsuit. This comports with federal requirements and eliminates the potential for ongoing Ohio Civil Rights Commission charges and concurrent litigation.

Clarification Concerning Supervisor Liability

Ohio law currently has a conflict over whether individual supervisors can be held liable for discrimination. Supervisor liability was established in the Ohio Supreme Court’s holding in Genaro v. Central Transport, Inc., 84 Ohio St.3d 293 (1999). Yet years later, this was called into question. Hauser v. Dayton Police Dept., 140 Ohio St.3d 266 (2014). Some federal courts have already interpreted Ohio law as eliminating individual liability for supervisors – Parker v. Strawser Constr., 307 F.Supp.3d 744 (S. D. Ohio 2018) – while other courts disagree.

Under ELUA, an individual supervisor or manager who does not otherwise qualify as an employer will not be held personally liable. This avoids the all-too-common occurrence where individual Ohioans are sued simply for doing their job as managers. It is important to reemphasize training obligations for managers in light of this new law alleviating direct individual economic consequences for some employment-related misconduct. It is also important to emphasize that the potential for some individual employment liability remains for common law claims, including but not limited to defamation, assault and battery.

Age Discrimination Claims

The Ohio law’s unnecessarily complex process for asserting age discrimination claims is no more. Currently, such claims are often brought under multiple statutory provisions, including Ohio Rev. Code § 4112.99 and § 4112.14. This has led to confusion as to what factors apply and whether age or not these various claims really differ.

Under ELUA, there is a single cause of action for age discrimination, with an alternative choice for injunctive relief claims. Suits for age discrimination will now include the same procedures as for other discrimination claims. This clarifies a gray area that has long been an issue under Ohio law.

The Bottom Line

ELUA is a welcome change providing uniformity and clarity for employers and individual Ohioans. Now is an opportune time for employers to assess their policies and practices and to make changes as needed to take full advantage of the new law. For example, employers may wish to evaluate workplace complaint policies and processes and to reassess levels of responsibility among the workforce to prevent an inadvertent supervisor and strict liability finding. Such steps can help employers take full advantage of the safe harbor provisions in the ELUA. Speaking of safe harbors, if you as an employer have not taken steps to take advantage of the safe harbor provided for data breaches, now is the time to implement a written cybersecurity program or to update such a program to account for the latest advances in technology.

[1] Employment Law Uniformity Act, https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-352.
[2] The defense derives its name from two Supreme Court cases. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
[3] Vance v. Ball State University, 570 U.S. 421 (2013).