Thursday, October 3, 2019

If at first you don’t succeed … Ohio will again try to fix its broken employment discrimination law

For lack of more artful description, Ohio’s employment discrimination law is an awful mess.

Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines); renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the state’s civil rights agency; and contains no affirmative defenses for an employer’s good faith efforts to stop workplace harassment.

There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.

Welcome House Bill 352 [pdf], introduced on October 1. It’s yet another business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.

Among its key reforms, H.B. 352:

  • Creates a uniform two-year statute of limitations for all employment discrimination claims.
  • Unites the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
  • Eliminates individual statutory liability for managers and supervisors.
  • Requires individuals file an administrative charge of discrimination with the Ohio Civil Rights Commission as a prerequisite to filing a discrimination lawsuit in court.
  • Prioritizes conciliation for all charges filed with the OCRC, so that all but the most difficult of cases can be resolved efficiently and cost-effectively.
  • Establishes an affirmative defense to certain hostile work environment sexual harassment claims, 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.

This bill presents a tangible opportunity to fix a very 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 federal employment discrimination statutes, H.B. 352 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.

As opponents to these reforms have argued in the past, we can expect to hear that the elimination of individual liability protects sexual harassers. Nothing could be further from the truth. The legislation leaves intact all common-law remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, and invasion of privacy—along with the possibility criminal sanctions for the most egregious of misconduct. H.B. 352 merely brings Ohio in line with federal law and the law of almost every other state on this issue. It also harmonizes Ohio law on this issue, as the Ohio Supreme Court has already eliminated individual supervisor and manager liability for public officials.

Now comes the hard part—getting this bill passed into law. If you believe H.B. 352 presents necessary reforms of a broken system, call or email your state representative and urge him or her to support this bill. Passing H.B. 352 is a battle worth fighting for Ohio’s businesses.

For more on H.B. 352, the Ohio Chamber of Commerce has shared its thoughts on its All for Ohio Blog.

* Image by greyloch via Flickr [CC BY-SA 2.0]