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On January 12, 2021, Governor Mike DeWine of Ohio signed House Bill 352. The bill, better known as the Employment Law Uniformity Act (ELUA), is Ohio’s most recent reform of its civil rights statutes.

Since its enactment, Ohio’s Employment Discrimination statute has been interpreted expansively by the Ohio Supreme Court. To curb judicial lawmaking, several interest groups, including Ohio’s Chamber of Commerce, and politicians have spent over 20 years proposing and negotiating various provisions of the ELUA. The ELUA both simplifies and clarifies the following: 

Statute of Limitations

Pre-ELUA, Ohio had a six-year statute of limitations on any civil action arising out of employment discrimination. This statute of limitations, the longest in any state, came out of an Ohio Supreme Court case and not the Ohio legislature. 

The ELUA now reduces the statute of limitations for civil claims to two years. It also extends the statute of limitations for administrative claims through the Ohio Civil Rights Commission (OCRC) from 180 days to 2 years. 

Exhaustion of Administrative Remedies 

Pre-ELUA employment discrimination claims could be filed in either civil court or through the OCRC. In fact, an individual could seek both remedies simultaneously. 

Now, for an individual to file a claim in a civil court, they must exhaust specific administrative remedies. First, an individual must file a claim with the OCRC before its two-year statute of limitations period. Second, the individual must either receive a right-to-sue notice or allow 45 days to pass without receiving such notice before filing a civil claim. The ELUA also tolls the statute of limitations for civil claims while the individual is exhausting their administrative options. 

Affirmative Defense for Employers

Before the ELUA, employers in Ohio had no affirmative defense against sexual harassment claims. The ELUA adds an affirmative defense for employers who can prove all of the following:

  • The employer had instituted an effective sexual harassment policy,
  • All employees were educated about the policy and the complaint procedure,
  • The employer took reasonable action to prevent or correct the harassment, and
  • The complainant did not take full advantage of other preventative and corrective procedures.

This new defense provides a stronger incentive for employers to institute and enforce an effective sexual harassment policy. 

Supervisor Liability

In 1999, the Ohio Supreme Court made it possible for individual supervisors and managers, along with the employer, to be held liable in employment discrimination claims. 

The ELUA aligns with federal law and states that individual supervisors and managers cannot be liable if they are acting in the interest of the employer. This does not include supervisors or managers that are also the manager of the company. The EULA will free supervisors and managers to make better decisions without fear of retaliation or liability. However, this does not mean that they are immune from all employment discrimination claims. Supervisors and managers may still be held liable in their personal capacity if they were acting outside the scope of their employment.

Age Discrimination

The ELUA condenses the complicated and multi-layered statutory scheme for age discrimination claims into one single cause of action. Age discrimination claims will follow the same policies, procedures, and remedies as to all other protected classes.

Tort Actions

Under the ELUA, discrimination claims will be classified as tort actions. This means that any discrimination claim will be subject to Ohio tort law which places caps on damages.

The ELUA will provide some much-needed clarity to Ohio’s employment discrimination statutes. It should provide ample protection for employees without unduly burdening Ohio employers.

Louis Licata is a managing partner. His practice is focused on employment law, litigation and business transactions. He can be reached at [email protected] or by phone at (216) 573-6000.

This article is meant as a general guideline. Nothing in this blog intends to create an attorney-client relationship or provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional.

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