Senate Bill 383 is an extremely employer-friendly piece of legislation that was introduced earlier this week in the Ohio state Senate. The bill seeks to overhaul the Ohio's employee-friendly employment discrimination laws, statutory and common law, and proposes the following non-exhaustive list of significant amendments:
1. Limits Definition of Employer and Excludes Managers and Supervisors
Currently, the definition of "employer" in Ohio means "any person acting directly or indirectly in the interest of an employer." Thus, unlike under Title VII, Ohio law, as interpreted by the Ohio Supreme Court, subjects managers and supervisors to personal liability. This interpretation not only tends to scare managers and supervisors in Ohio that decisions they make may render them personally liable, but it allows plaintiffs to go to state court with their claims and avoid federal court jurisdiction, where summary judgment motions tend to be viewed more favorably. If passed, S.B. 383 would change the definition of "employer" to do away of individual liability for managers and supervisors for discrimination, retaliation and harassment in Ohio.
2. Limits Liability for Temporary or Seasonal Employers
The proposed definition of "employer" would further limit covered employers to those who employ "four or more persons each working day in each of twenty or more calendar weeks in the current or preceding calendar year." This "twenty or more calendar weeks" language is new and potentially would provide a way for temporary and seasonal employers to limit their exposure under R.C. Chapter 4112.
3. Limit the Statute of Limitations to 365 Days
Currently, individuals have six years to file most discrimination and retaliation claims in Ohio including claims based on race, color, religion, sex, military status, national origin, disability, age, and/or ancestry. As for age, this is a little more complicated and, in some cases, individuals have either 180 days or six years, depending on which of the four, count 'em, four ways the plaintiff chooses to bring their age discrimination claim. S.B. 383 seeks to create a 365-day statute of limitations for all employment discriminations claims, including claims for promissory estoppel, breach of an implied contract, or intentional infliction of emotional distress. Should this pass, Ohio would go from having one of the longest statutes of limitations to one of the shortest.
4. Unification of Age Discrimination Claims
As indicated above, individuals have four different ways to bring age discrimination claims against employers under current law:
- R.C. 4112.14(B), which requires an individual to file suit within six years but limits remedies to wages and benefits, reinstatement, costs, and attorneys’ fees;
- R.C. 4112.02(N), which requires an individual to file suit within 180 days and provides the full range of remedies, including compensatory and punitive damages;
- R.C. 4112.05, which allows an individual to file an administrative charge with the Ohio Civil Rights Commission ("OCRC"), but precludes the individual from filing a civil lawsuit for age discrimination; and
- R.C, 4112.99, the catch-all provision that provides an independent civil action to seek redress for any form of discrimination identified in Chapter 4112, including age discrimination.
S.B. 383 would do away with these four distinctions and include age among the other protected classes subject to the same procedures, remedies and single statute of limitation.
5. Election of Remedies
Currently, except for age discrimination claims, individuals can file an administrative charge alleging discrimination and/or retaliation and a civil lawsuit. S.B. 383 would extend the election of remedies provision that currently only applies to age claims to all discrimination claims. Thus, if passed, individuals would have to elect between filing an administrative charge with the OCRC or a civil lawsuit in court. They could not do both like they presently can in all but age cases. Should individuals choose to proceed with the OCRC, the proposed amendment also seeks to prioritize mediation and conciliation.
6. Exclusion of Those Working in a Ministerial Capacity
Currently, it is unclear whether employees employed in a ministerial capacity are entitled to protections under R.C. Chapter 4112. Earlier this year the United States Supreme Court ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that Title VII does not offer protection to employees working in a ministerial capacity. The proposed amendments to R.C. 4112.02 would make it clear that "religion" as a protected class excludes those working for religious organizations a ministerial capacity. This would clarify the split among Ohio courts and put Ohio in line with the Supreme Court's ruling on the issue in the Title VII context.
7. Faragher-Ellerth Defense to All Discrimination Claims
Currently, employers can raise an affirmative defense in hostile work environment cases that: (1) they exercised reasonable care to prevent and correct promptly any harassing behavior and (2) the plaintiff employee unreasonably failed to take advantage of the any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the Bill passes, this affirmative defense would apply to all types of discrimination, not just harassment, which did not result in an adverse, tangible employment action against the employee. The legislation would allow employers to raise an affirmative defense as long as it exercised reasonable care to prevent or promptly correct the alleged unlawful behavior and the employee failed to take advantage of any corrective opportunities provided by the employer or to otherwise avoid the alleged harm.
8. Statutory Cap on Noneconomic and Punitive Damages
While this issue has never been squarely addressed by the Ohio Supreme Court, noneconomic and punitive damages in employment claims arguably are capped by Ohio's tort reform statute, R.C. 2315.18 (noneconomic) and 2315.21 (punitive). With respect to noneconomic damages under R.C. 2315.18(B)(2), they cannot exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the economic loss to a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort action. Pursuant to R.C. 2315.21, punitive damages are capped for tort claims based on the size of the employer. Under the statute, however, there are only two categories, "small employers", which are those employers that employ not more than one hundred persons on a full-time permanent basis (unless classified by manufacturing sector by the North American industrial classification system) and "large employers". R.C. 2315.21 prohibits a court from entering judgment for punitive damages in excess of two times the amount of compensatory damages. However, if the defendant is a small employer or individual, the court cannot enter judgment for punitive or exemplary damages in excess of the lesser of two times the amount of the compensatory damages awarded to the plaintiff from the defendant or ten percent of the employer’s or individual’s net worth when the tort was committed up to a maximum of three hundred fifty thousand dollars.
The proposed change in S.B. 383 would cap punitive and noneconomic damages in discrimination suits based on the size of the employer, but amounts available would be even more limited than those allowed under Ohio's tort reform. For example, noneconomic and punitive damages would be capped in discrimination claims as follows:
- Employers that employ 4 – 100 employees capped at $50,000;
- Employers that employ 101 – 200 employees capped at $100,000;
- Employers that employ 201 – 500 employees capped at $200,000;
- Employers that employ 501+ employees capped at $300,000.
It is unclear how this bill will fare in the legislature, but one thing is clear, Ohio employers should put its passage on their holiday wish lists.