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Bill seeks to overhaul employment discrimination laws
SHERRY KARABIN
Legal News Reporter
Published: February 19, 2016
The fight to change Ohio’s employment discrimination laws is underway once again.
On Feb. 1 Sen. Bill Seitz (R-Cincinnati) introduced Senate Bill 268, which the Ohio Chamber of Commerce argues contains changes that will result in state law being more closely aligned with federal rules.
Fisher & Phillips labor and employment partner Sarah J. Moore said the bill focuses on three main changes: It places “more meaningful” caps on punitive and non-economic damages, reduces the time that an employee has to file a claim from six years to one year and keeps individual supervisors from being named as defendants.
“The proposed changes are very positive from a business perspective,” said Moore, who defends employers against discrimination claims. “If the bill passes as introduced, damages will be limited to between $50,000 and $300,000 depending upon the size of the company.
“As things stand now, there are no caps in place, other than limits imposed by Ohio’s Tort Reform Act,” said Moore. “As a result, a business can potentially be hit with a six or seven-figure verdict. Depending on the size of the company, this can have a crippling impact.
“Additionally, by scaling back the statute of limitations in which employees may file a claim to one year as opposed to six years, this allows companies to respond in a more meaningful way. The documents are more accessible and those involved are more likely to still be working for the company and have fresher memories.
“Plaintiffs who file federal discrimination lawsuits are held to a one-year statute of limitations so this change would align Ohio with federal law,” said Moore.
The proposed bill does extend the time employees have to file a charge with the Ohio Civil Rights Commission from the current 180-day time frame to 365 days.
Moore said excluding individual supervisors from being named in discrimination lawsuits helps to eliminate finger pointing among multiple defendants, which assists in keeping the focus on defending the specific allegations.
“Right now, individual supervisors can be held personally liable,” said Moore. “If the bill passes only the company will be a named defendant in the suit.”
But Betsy Rader, of counsel at the national plaintiffs’ firm Thorman Petrov Group Co., said the proposed changes put the average worker at a major disadvantage.
“It’s already tough to enforce the current discrimination laws in Ohio,” said Rader, who works out of the Cleveland office. “In theory employees who are discriminated against have a right, but in reality they do not have an effective remedy.
“Businesses have advocates like the Ohio Chamber of Commerce, but the average worker does not know a thing about the law until he/she gets fired.”
Rader said many employees who are fired are in a state of shock and in no position to take action immediately.
“I recently represented a man who was fired after 30 years,” said Rader. “This guy has not looked for a job in 30 years. The reality is he may never find one, or if he does, it will likely take longer than a year and he will not be paid the same salary.
“He might not even think to see a lawyer until after a year has passed or he might be afraid that if he files a public lawsuit while job searching, no one will hire him. If we change the law so that someone in a position similar to his must file within a year, this person would likely miss the deadline.”
Rader said there is also one big difference between Ohio and federal law that pro-employer advocates seem to overlook. “Ohio law does not pay for attorneys’ fees,” she said. “If a worker gets an award of $50,000 because he/she works for a small company and is subject to the new proposed damages cap, the person has to pay the lawyer out of that money.
“Only discrimination victims would have these special damage caps,” Rader said. “Someone who files a malpractice or defamation claim would get much more money under Ohio’s general tort damage caps.”
Rader said the rules governing age discrimination lawsuits already trip up many employees.
“Ohio law provides four different age discrimination statutes with different time limits and different remedies,” said Rader. “The bill would make things worse by reducing the time available to file suit under some of the current laws, while reducing the remedies now available under others.”
She said that under the proposed law, if an employee files a complaint with the Ohio Civil Rights Commission he/she is unable to file a claim in court until the commission makes a decision.
“This delays the employee’s day in court and the unemployed worker often experiences extreme stress and financial problems while waiting for their case to be addressed.”
She said the proposed bill not only prohibits individual supervisors from being sued it also provides companies with an affirmative defense.
“If an employee is experiencing discrimination on the job, but has not suffered an economic loss due to firing or being demoted and the company has a policy in place, conducts training and has a complaint process, the lawsuit may be thrown out,” said Rader.
While Rader admits Ohio’s discrimination laws need to be revised, she said they should be changed to improve employees’ ability to obtain adequate relief. She said the proposal goes in the wrong direction.
“I am not sure that employees need six years to file a claim, four years might be sufficient,” said Rader. “But they do need more than one year. Those who file breach of contract suits have eight years to do so and those who sue for fraud get four years.”
Revamping the state’s employment discrimination laws has been a longstanding goal for the Ohio Chamber of Commerce.
Several years ago, the chamber backed Senate Bill 383. Introduced in 2012, it proposed a number of similar changes, including a universal 365-day statute of limitations for the filing of all employment discrimination claims.
The 2012 bill, which failed, also called for caps based on company size, eliminated individual liability for managers and supervisors and established a similar affirmative defense for claims that did not result in an employee’s firing or demotion.
Rader said she is surprised by the introduction of the recent bill and questions the wisdom of “making it more difficult in this economy for older people, women and minorities to enforce their rights to work.”
Moore said she expects that there will be a number of amendments to the current Senate Bill 268.
“One area to watch is whether sexual orientation and transgender will be dealt with,” said Moore. “Under Ohio law sexual orientation and transgender are not a protected class. At the federal level, some courts have allowed discrimination cases based on sexual orientation or transgender status, while others do not. It is an area of the law that is quickly evolving.”