On January 12, 2021, Governor Mike DeWine signed into law an amendment to the Ohio Revised Code 4112, making several significant changes to how employment discrimination claims are handled in Ohio. The statute as amended now aligns more closely with the substantive and procedural requirements of federal anti-discrimination laws, including the most significant changes discussed below. 

Mandatory Exhaustion of Administrative Remedies Before Lawsuit

Employees are now required to file a charge of discrimination with the Ohio Civil Rights Commission (OCRC) prior to filing a lawsuit for all claims of discrimination or retaliation brought under the Ohio statute. This requirement is consistent with the requirement to exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) prior to filing a lawsuit for discrimination claims under Title VII of the Civil Rights Act of 1964. 

Once a charge has been submitted to the OCRC, the Agency will investigate, render a determination as to whether “it is probable that an unlawful discriminatory practice relating to employment has occurred or is occurring.” If so, they will issue a “notice of right to sue” to the employee, which is a notice sent by the OCRC to the person who filed the charge, stating that they may file a civil action related to the charge in a court of law. After the employee receives the notice of right to sue, the employee may initiate litigation against the employer. Employees have the option to request that the OCRC cease its preliminary investigation and issue them a right to sue notice after 60 days-time has elapsed (For more information, please see the H.B. 352 here).

Individual Supervisor Liability Removed: No Longer an “Employer” Under the Statute

Before its recent amendment, Ohio’s anti-discrimination statute deviated significantly from the federal statute in that an employee’s supervisor or manager, not just the company or employer, could be held liable for their own discriminatory acts or for acts they knew(or should have known) were taking place that they failed to be adequately addressed. In updating the definition of who qualifies as an “employer” for purposes of liability under the statute, Ohio’s statute now mirrors Title VII in that a supervisor cannot be held individually liable under the law unless that supervisor also meets the definition of an “employer” under the statute. 

Statute of Limitations Periods 

Ohio’s amended anti-discrimination statute requires that a charge of discrimination be filed with the OCRC within two years of the alleged discriminatory practice. Previously, the statutes of limitations for bringing a charge varied between 180 days to six years depending on the type of discrimination alleged. The new two-year statute of limitations is consistent with that under federal law. 

Employer Affirmative Defense Codified

Employers facing liability for hostile work environment sexual harassment have an opportunity to present an affirmative defense, essentially arguing that even if this discrimination did, in fact, take place, the employer should not be held vicariously liable for the bad acts of its employee(s) because (1) the employer “exercised reasonable care to prevent or promptly correct any sexually harassing behavior” and (2) the complainant “unreasonably failed to take advantage of any preventative or corrective opportunities by the employer or to avoid harm otherwise.” This affirmative defense has been codified in the amended version of the statute. 

Protect Your Business by Acting Now to Preserve Availability of Affirmative Defense Later

To take advantage of this defense, one will need to establish (1) written policies against discrimination, harassment, and retaliation, (2) a written and clearly defined reporting and investigation process for employees to report such allegations, and (3) policy sign-offs or other signed and dated records demonstrating that the employee was aware of the policies and reporting procedures. Once an allegation is reported, the employer is obligated to investigate and act swiftly to address any substantiated allegations. To escape liability, employers must establish both that they (1) did everything they could to prevent the kind of behaviors alleged by establishing clear policies outlining acceptable and unacceptable behaviors as well as the process in which employees can report policy-violating behaviors, and (2) that the employee was aware of these policies yet failed to take advantage of the reporting processes to make the employer aware of the behavior and allow for intervention.

The statute amendments will take effect April 2021 and will not be applied retroactively.