In the midst of an ongoing pandemic and all of the questions it’s raised for employers, especially small business employers,* you may have missed a new Ohio employment law that’s about to take effect. The governor recently signed the Employment Law Uniformity Act into law. As an employer, what do you need to know about this new law? What steps should you take to protect your business or nonprofit in light of these changes?
Bringing Employment Discrimination Lawsuits
The new law will shorten the time employees have to bring claims of workplace discrimination. Previously, the statute of limitations for these cases was 6 years. The new law shortens this to just 2 years. It also requires employees to file their claims with the Ohio Civil Rights Commission (“OCRC”) and obtain what is known as a “right to sue” letter before filing a case in court. Previously, filing a charge with the OCRC was effectively optional. As a result, if you had multiple employees making similar allegations of discrimination, you could find your business facing multiple cases in different venues. With the new law, the OCRC can consolidate these cases together, potentially streamlining the process and resolving claims before expensive litigation is filed.
Defending Hostile Work Environment Claims
As an employer, if you “allow” or fail to prevent harassment or discrimination in your workplace, both you and your business or nonprofit can be named in a subsequent lawsuit. Essentially, the argument is that as the employer, you allowed a hostile work environment to exist. Under the new law, employers, you won’t be responsible for hostile work environment claims if the employer can prove:
- The employer had a robust anti-discrimination policy;
- The employer properly trained the employees on appropriate workplace behavior and complaint procedures;
- The employer exercised reasonable control in preventing or correcting harassment in the workplace; and
- The employee failed to take advantage of the employer’s complaint procedures or other preventive or corrective opportunities.
Minimizing the Risk of Personal Liability
Ohio’s Fair Employment Practices Act (O.R.C. 4112.02) prohibits employers from discriminating on the basis of race, color, religion, sex, national origin, handicap, age, or ancestry. The law defined “employer” as any person who employed four (4) or more people and “any person acting directly or indirectly in the interest of an employer.” As a result, the Ohio Supreme Court held that “individual supervisors and managers [were] accountable for their own discriminatory conduct occurring in the workplace environment.” Genaro v. Cent. Transport, Inc, 68 Ohio St. 3d 293, 300 (1999). In other words, if an employee claimed discrimination, the employee could sue both the employer and their supervisor or manager.
Owners of the business are often counted as “employees” for purposes of reaching the 4 or more threshold.
Under the new law, merely being a supervisor or manager should not be enough to find yourself named in a discrimination lawsuit. However, supervisors and managers will still be personally liable in certain situations:
- Acting outside the scope of one’s employment: If a supervisor or manager engages in harassing or discriminatory behavior outside of work or even outside the bounds of their job description, they can still be held personally liable for that behavior.
- Retaliation: If an employee can show that their supervisor or manager retaliated against them for complaining of harassment or discrimination, the supervisor or manager can still face personal liability.
- Engaging in the discriminatory practice: Supervisors and managers can still be held liable for their individual actions, even if the supervisor or manager argues that the actions were within the scope of their employment.
As a smaller employer, you can still face personal liability for a discrimination or harassment claim, particularly when you are both the owner and the supervisor or manager. And if you employ others as supervisors or managers, both your company and those individuals can be held jointly and severally liable, meaning that the plaintiff-employee can collect the entire amount of any judgment from the company, the supervisor/manager, or both of you. (In practice, this means that the plaintiff-employee will collect from whomever it is easier to collect from, which is often the employer because of its “deeper pockets.”)
Key Takeaways
- Update your document retention policy. Given this update to Ohio’s employment laws, you may consider shortening your retention of personnel files from 6 years to 3.
- If you haven’t done so recently, now is a great time to review and update your non-discrimination and anti-harassment policies. Especially in smaller, closely-knit environments, your policy should carefully and thoughtfully address relationships both in and outside of the workplace and how those relationships can impact the work environment.
- Having a non-discrimination policy isn’t enough. You also need to take steps to train your employees on the policy and the kinds of behavior you won’t tolerate. Don’t just assume that as a “small” employer, everyone on your team simply knows better.
- If (when) an issues arises, follow the procedures you put into place for investigating and addressing complaints. Document the process! (Did we mention that simply having a policy isn’t enough?)
- Retaliation against an employee for complaining of harassment or discrimination will cause more problems than the complaint itself. Almost any change in the employee’s working conditions can potentially be construed as retaliation. This is why it’s so important to consult with legal counsel both during your investigation and when deciding what actions to take as a result of that investigation.
More Firm guidance is available here. You can also check out pandemic-related employer resources from the CDC, EEOC, and NFIB.
