H.B. 352: Less than meets the eye; more than some HR pros will notice …

On April 15, 2021, Ohio H.B. 352 amended Ohio’s Employment Discrimination Law (RC 4112).

Some of the changes that it makes are quite clear, but a few items in it are only to be spotted by HR “insiders.”

1.  On its face:

• Lowers the statute of limitations, for Court filings, from the judicially created six (6) years to two (2) years.
• Extends the administrative charge filing deadline from six (6) months to two (2) years.
• Removes personal liability for managers and supervisors (if that liability ever existed in the public sector…)
• Requires that any action be first filed with the OCRC; and, that direct filing in court, under RC 4112.99, is no longer an option.
• Codifies a court created defense to harassment for employers who took appropriate action to prevent and correct workplace harassment by co-workers.
• Simplifies and combines what had been three (3) different age discrimination causes of action into one (1).

2.  For “Insiders”…

• The part about eliminating liability for supervisors may mean almost nothing in the Public Sector, since the Ohio Supreme Court had stated in Hauser v. City of Dayton, Ohio St. 3d 266, that public sector supervisors could not be individually sued.  That case, however, was soon “short circuited” by Plaintiff’s counsel; who simply charged the supervisors as “aiders and abettors”….  Now, all of that nailed down and secure.
• The long relied upon “Thurman clauses,” in employment applications, may no longer work under newly revised RC 4112.  In Thurman v Daimler Chapter, 397 F. 3d 352, the Sixth Circuit had held that a signed waiver of time limits, in an employment application, could shorten the statute of limitations under 42 USC 1981.  That Court reasoned that this was possible because 42 USC 1981 did not have its own self-contained limitations period for filing actions in court.  Up until now, RC 4112, similarly, did not have its own self-contained statute of limitations, so “Thurman Clauses” arguably applied when cases were filed directly in Ohio’s state courts, and could radically shorten the old 6 year statute of limitations.  See: Fry v FCA U.S. LLC, 2017-Ohio-7005.
• Now that RC 4112 has its own “self-contained” statute of limitations, such signed waivers will no longer work.
• An amendment to RC 4112.051 (C) would now, for the first time, allow a third party to file a charge on behalf of someone else.  This could include family members, friends, or even Union shop stewards …
• Allows an untimely notarized “charge” to “relate back” to when it was first drafted and tendered to the OCRC; irrespective of when it was later notarized, or given to the employer …

3.  The take-aways … and future “issues”…

• Probably not a mandate for any wholesale change in written policies, unless they refer to timelines.
• One predictable issue will be the functional “effective date” of the new law.  While the law took effect April 15, 2021, we might expect to see a few Plaintiff’s counsel try to invoke the longer statute of limitations for agency filing in cases where they were tardy, and missed the old six (6) month filing period (i.e. prior to 4/15/2021).
• We might even see Plaintiffs with five (5) year old claims trying to still invoke the six (6) year limitation period.
• Until the time question is finally resolved, it may be unwise to suddenly amend record retention schedules so as to discard old employment files.

Clemans Nelson Research Team