Thursday, February 2, 2017

Ohio again tries to restore sanity to its bonkers employment discrimination law

It was almost one year ago to the day that I penned, Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act. I wrote:
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.
Last year’s attempt at this sanity restoration, Senate Bill 268, died at the end of 2016 with the expiration of the last legislative session.

Thankfully, however, House Bill 2 has resurrected this attempt. (And, yes, the irony that today is Groundhog Day is not lost on me.)

Among its key reforms, H.B. 2:

  • Creates a universal 365-day statute of limitations for all employment discrimination claims.
  • Eliminates individual statutory liability for managers and supervisors.
  • 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 hostile work environment sexual harassment 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.

Differently from last year’s effort, H.B. 2 eliminates any express caps on compensatory and punitive damages, instead relying on the caps already established by Ohio’s tort reform statute.

My praise for S.B. 268 applies equally to H.B. 2:
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 [now H.B. 2] 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.
Let’s hope that H.B. 2 is the legislation we need to break this cycle and finally reform this broken law. If you believe H.B. 2 presents the necessary reform of a broken system, call or email your state representative and urge him or her to support this bill.