Thursday, October 18, 2012

Major reform to Ohio’s discrimination laws introduced in state senate

Ohio’s employment discrimination laws leave a lot to be desired. They expose employers to claims for up to 6 years, render managers and supervisors personally liable for discrimination, contain no less than 4 different ways for employees to file age discrimination claims—all with different remedies and filing periods, and require no filing with the state civil rights agency as a prerequisite for filing a civil lawsuit.

Yesterday afternoon, Senate Bill 383 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 and amendments, S.B. 383:

  • Creates a universal 365-day statute of limitations for all employment discrimination claims.

  • Clarifies that the inclusion of “religion” as a protected class does not include those working in a ministerial capacity.

  • 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, and making clear the the election of one bars the other.

  • Prioritizes mediation and conciliation for all charges filed with the OCRC.

  • Establishing 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.

  • Eliminates individual liability for managers and supervisors.

  • Caps noneconomic and punitive damages based on the size of the employer.

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 disadvantage. By paralleling much of the federal employment discrimination statutes, S.B. 383 restores balance and predictability for Ohio employers.

Focusing on the elimination of individual liability for discrimination claims, the Ohio Employment Lawyers Association, a vocal group of plaintiff-side employment lawyers, has already labeled this legislation as “protecting sexual predators.” Nothing could be further from the truth. The legislation leaves intact all common remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, invasion of privacy, and criminal sanctions. S.B. 383 merely brings Ohio in line with federal law and the law of most states on this issue.

Now comes the hard part—getting this bill passed. If you believe S.B. 383 presents the necessary reform of a broken system, call and email your state senator and urge him or her to support this bill. Getting S.B. 383 passed will be an uphill battle, but it is a battle worth fighting to bring meaningful reform to a broken statute.