Ohio employment law attorney Jon Hyman posted on his blog today that the Ohio legislature is currently considering a bill entitled H.B. 2. His apt summary explains that H.B. 2:
- Creates a universal 365-day statute of limitations for all employment discrimination claims.
- Eliminates individual statutory liability for managers and supervisors.
- Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
- Requires individuals to elect between filing an administrative charge with the Ohio Civil Rights Commission or filing a discrimination lawsuit in court, with the filing of the former tolling the statute of limitations for the latter.
- Prioritizes mediation and conciliation for all charges filed with the OCRC, such that all but the most difficult of cases can be resolved efficiently and cost-effectively.
- Establishes an affirmative defense to hostile work environment sexual harassment claims not alleging an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm (the “Ellerth-Farragher defense”).
- Eliminates any express caps on compensatory and punitive damages, instead relying on the caps already established by Ohio’s tort reform statute.
In many ways, Ohio law is already unfavorable to individuals and employees. H.B. 2 would make it even worse. For one, Ohio is one of very few states that do not have a civil rights law that provides for attorney fees to a prevailing plaintiff. Having to file with the OCRC before filing suit just creates more delay for an aggrieved employee, and probably extra expense and aggravation for the employer too.
Everyone knows that employees mostly file with the EEOC and/or OCRC in order to get a “right-to-sue” letter. It is also unnecessary for the Ellerth-Farragher defense to be enshrined in the statute, since it arises out of federal common law (which the Supreme Court or Sixth Circuit Court of Appeals could alter or further clarify). Furthermore, Ohio courts already follow federal civil rights law and already recognize the Ellerth-Farragher defense. Furthermore, why reduce the statute of limitations to only one year, essentially the shortest limitations period possible? One of Ohio law’s few benefits to employees is that it provides a remedy if the employee did not file an EEOC charge within 300 days.
To sum it up, this bill is bad, bad, bad news for Ohio employees and the legislature should reject it.
