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Employment Law Reforms Supported by SHRM members would




Over the past dozen years, Ohio's law against employment discrimination (R.C. Chapter 4112) has been mutated beyond recognition through a series of 4-3 Ohio Supreme Court decisions and "creative" lawyering by the plaintiffs' bar. The employment law reforms sought by SHRM members will return ORC 4112 back to its original intent . In the process, these changes would overrule, limit, or clarify the impact of several 4-3 Court decisions, as well as fill in other gaps. In the end, these changes would enact sensible reforms to ORC 4112 and make Ohio's law consistent with federal employment discrimination laws .

Reasonable Caps on Non-Economic Damages:

Prior to a 1991 Ohio Supreme Court decision, employment discrimination plaintiffs were limited to pursuing their claims (with the exception of age bias) through the administrative processes of the Ohio Civil Rights Commission (OCRC). Remedies through the OCRC were limited to economic damages—namely, back pay, benefits, and reinstatement. Compensatory and punitive damages were not and are not recoverable through the OCRC. That changed in 1991 when the Ohio Supreme Court decided that RC 4112 provided a private right of action for plaintiffs to file lawsuits in court without having to go to the OCRC. Later decisions by the Court expanded on this case, reasoning that plaintiffs could also be awarded unlimited compensatory damages and punitive damages in court, even though those damages were unavailable through the OCRC. It is not uncommon now to see multi-million dollar punitive damage awards. While our Court "legislatively" added these new rights and remedies to Ohio law, at the federal level, Congress enacted the Civil Rights Act of 1991, permitting prevailing plaintiffs in employment discrimination cases to collect compensatory and punitive damages within reasonable limits .

SHRM members support legislation mirroring the federal Civil Rights Act of 1991 . This change would allow the Ohio General Assembly to legislatively recognize the recoverability of compensatory and punitive damages, while placing a reasonable limit on them. SHRM does not advocate placing limits on economic damage awards for items such as back pay, benefits, front pay, or medical care. Our proposal would simply limit non-economic compensatory and punitive damage awards .

Accept Invitation From Supreme Court To Identify Reasonable, Uniform Statute of Limitations:

Because the Court created new causes of action, in subsequent decisions it had to determine what statute of limitations applied.. Because RC 4112 contains no statute of limitation (because it was never intended to allow lawsuits), the Court ultimately fell back on Ohio's general 6-year statute of limitations…. except of course for age discrimination lawsuits, which had a 180-day limitations period. In this 1994 decision, after reviewing the mess the Court had created, with certain claims having 180-day limitation periods and others having an incredible 6-year limit, Justice Resnick wrote: "I beseech the General Assembly to reclaim this issue and resolve it on a legislative level."

SHRM members urge you to accept Justice Resnick's invitation. SHRM supports a uniform 300-day statute of limitation for all forms of employment discrimination. This limitation period mirrors federal law , which requires individuals to begin the process of filing a lawsuit by first filing a charge of discrimination with the EEOC within 300 days. The 300-day limitation period is longer than the 6-month time period individuals currently have to file a charge of discrimination with the OCRC (RC 4412.05(B)(1)). It is also longer than the 180-day limitation periods for workers' compensation retaliation claims (RC 4123.90) and whistleblower retaliation claims (RC 4113.52(D)). Again, our proposal makes Ohio's statute of limitations the same as under federal law and consistent regardless of the type of discrimination alleged .

Reverses Tortured Decision of Supreme Court Creating Individual Liability:

As originally enacted, RC 4112 applied to employers with fewer minimum employees (four employees) than those covered under federal Title VII law (fifteen employees). This changed in 1999, when yet another 4-3 decision of the Ohio Supreme Court held that individual supervisors, managers, and coworkers were "employers" under RC 4112. Although federal and Ohio law both recognize that employers could be held vicariously liable for the acts and omissions of their employees, the 1999 Court decision allowed individuals to sue their coworkers and managers for employment discrimination in Ohio for the first time. (Individual coworkers and managers cannot be sued for employment discrimination under federal law.) Today, plaintiffs typically name several coworkers and managers in employment discrimination lawsuits. Serving a court complaint on the Plant Manager, HR Manager, and other managers in the chain of command increases the pressure on the company to settle. Managers, HR professionals, company owners, and coworkers are discouraged from making effective business decisions for fear of being personally sued.

SHRM supports returning ORC 4112 to its original intent by recognizing that companies, not employees, are in the best and only position to remedy discrimination through back pay, lost benefits, and reinstatement. In egregious cases, our proposal does not limit an individual's right to file common law tort claims like assault, battery, and infliction of emotional distress against a coworker . Our proposal puts Ohio law on the same footing as federal law and the vast majority of other state antidiscrimination laws by making clear that coworkers are not "employers."

No More Double-Dipping by Piggybacking Duplicative Tort Claims:

In 1990, the Ohio Supreme Court created a new cause of action called "discharge in violation of public policy ." Ohio employers (and courts) are struggling with which "public policies" are encompassed by this new tort claim. In most cases, plaintiffs now sue their employers alleging both: (1) discrimination under ORC 4112, and (2) discrimination violating of the public policy underlying ORC 4112. Some commentators refer to this as "piggybacking." In a 1997 Ohio Supreme Court decision, a plurality of Justices commented that "piggybacking" was proper unless the Ohio General Assembly said that the statute was the "sole and exclusive remedy."

SHRM members support making clear that employment discrimination claims are a creature of statute, and should therefore be limited to the rights and remedies provided for by the General Assembly . Our proposal prevents "piggybacking" public policy tort claims on top of the statutory claim for discrimination. The Ohio General Assembly originally enacted ORC 4112 as the exclusive avenue for addressing and remedying employment discrimination in Ohio; our proposal would return the law to that enacted by the Legislature .

Eliminates Wasted Time and Costs Associated With Defending Same Claim in Two Forums:

As a result of the Court's 1991 decision that permitted employees to file private lawsuits for discrimination, employees can pursue their claims in two forums: administratively through the OCRC, and through the courts. Except for age bias cases, employees can file a charge with the OCRC, participate in an administrative hearing represented by a state's attorney general, lose the case, appeal the decision to court, lose on appeal, and still file a lawsuit!

SHRM members propose enacting a reasonable election provision in RC 4112. If a plaintiff files a lawsuit first, they could not also file a charge with the OCRC. If the individual files a charge with the OCRC first, the Commission would notify the individual that they have a right to file a lawsuit. If one is not filed within 90 days, the individual could proceed with the administrative action only. The proposed Bill would not limit the authority of the OCRC to launch or conduct its own investigations. An early, informed election requirement would conserve the limited time and resources of the OCRC, employers, and the court system.