Best Age Discrimination Attorney Answer: What should I do if I was fired today and replaced with a younger worker? How do I prove that I was wrongfully fired because of my age? What can I do if my boss lies about the reason that I was fired?
Usually, an employee can file a discrimination claim under Ohio law for race/color, religion, gender/sex, national origin, and disability discrimination without restriction as long as it is filed within the time period proscribed under the law. This means that even if an employee files a charge of discrimination with the Ohio Civil Rights Commission (“OCRC”) or Equal Employment Opportunity Commission (“EEOC”) he or she can still file a state-law discrimination or retaliation claim under Ohio R.C. § 4112.01 et seq. without restriction, as long as the claim is filed within the proscribed statute of limitations (time period allowed for filing the claim). (For more, read How Long Do I Have To File With The EEOC?). As our employment discrimination attorneys have blogged about before, this does not mean employees that feel that their boss, supervisor, or manager is racist or sexist and discriminating against them should rush to file with the EEOC or OCR on their own. (See Top Employment Law Attorney: Do Not File With The EEOC; File With The EEOC Or Get A Lawyer?; Should I File With The EEOC On My Own? No, Get A Lawyer!).
Moreover, there is an exception to the rule that allows employment discrimination lawsuits to be filed under Ohio law after filing with the OCRC or EEOC. That exception is for is age discrimination. (See Age Discrimination Plaintiffs Beware: Filing an EEOC Charge May Prevent You From Filing Your Age Discrimination Claim in Court). Age discrimination claims under Ohio law are specifically limited by R.C. § 4112.08, which provides in relevant part:
Nothing contained in this chapter shall be considered to repeal any of the provisions of any law of this state relating to discrimination because of race, color, religion, sex, military status, familial status, disability, national origin, age, or ancestry, except that any person filing a charge under division (B)(1) of section 4112.05 of the Revised Code, with respect to the unlawful discriminatory practices complained of, is barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code.
Embedded in this section is a restriction on age discrimination claims in that if an employee first files a charge of discrimination with either the OCRC or EEOC then the employee may not then file a state-law age discrimination claim under R.C. § 4112.14 or 4112.02(N). This is very different than the federal Age Discrimination in Employment Act (“ADEA“), which like Title VII of the Civil Rights Act of 1964, requires employees to first file with the EEOC in order to get the right to sue their employers.
However, there is an important exception…to the exception.
Recently, the United States District Court for the Northern District of Ohio dealt with this “exception to the exception” regarding R.C. § 4112.08 and the restriction on age discrimination claims. In Fortunato v. University Health Systems, the employee Kathryn Fortunato sued her employer, University Hospital System, Inc. (“UH”) for age discrimination that resulted in her being wrongfully terminated. Fortunato, who worked as a medical secretary for the same employer for over 11 years, claimed that her boss required her to use a new computer program but failed to provide her with adequate training, which younger employees received. As a result of not being properly trained, Fortunato predictably made mistakes, and the employer used those mistakes to fire her. Fortunato claimed that the mistakes were just pretext for age discrimination. (See What Is Pretext?). Unfortunately, employers will often attempt to set up minority employees to fail, let them fail, and then fire them. This is still employment discrimination.
Fortunato filed a charge with the EEOC, who in turn gave her a right to sue letter. With the right to sue letter in hand, the employee filed a five count complaint, which included a state law claim for disability discrimination and a federal law claim for a violation of the ADEA. UH filed a motion for judgment on the pleadings to dismiss Fortunato’s age discrimination claim on the basis that she had previously filed an EEOC claim based on age discrimination, and therefore, pursuant to R.C. § 4112.08, she could not file a state-law age discrimination claim. In response, Fortunato argued that there was an “exception” to the election of remedies provision in R.C. § 4112.08, which was that Fortunato only filed the EEOC charge in order to “perfect her right to file a claim under the ADEA.” The Honorable Judge Patricia A. Gaughan sided with Fortunato.
In supporting its position, the Judge Gaughan wrote in her opinion as follows:
Upon review, the Court finds that defendant’s motion must be denied. Although not cited by either party, the Sixth Circuit addressed this issue in two unpublished opinions. In McLaughlin v. Exel Wire & Cable, Inc., 787 F.2d 591 (6th Cir. 1986), the Sixth Circuit reversed the district court’s finding that plaintiff’s “choice of opting to file with the EEOC bars his claim for judicial relief in state court.” The court held:
Filing a charge with the EEOC simply cannot be equated with instituting an action with the OCRC. Next, we find no support for the district court’s holding in the Ohio statutes. [The Ohio Revised Code] clearly preclude[s] the judicial remedies under state law only if a charge, in writing and under oath, is filed with the OCRC within six months of an alleged discriminatory practice. Finally, since the filing of an EEOC charge is a prerequisite to bringing a subsequent suit under the ADEA, adoption of the district court’s holding would foreclose ever bringing an action alleging age discrimination violation of both the ADEA and Ohio law in federal court. Such a result would run contrary to the interrelated and complementary nature of federal and state employment discrimination procedures….
Later, in another unreported decision, the Sixth Circuit expressly reached the issue:
Defendant also claims that this state claim is barred because the Ohio statutory scheme includes an election of remedies provision. A party in plaintiff’s position must choose whether to proceed under O.R.C. 4101.17, the age discrimination provision…, or to seek an administrative remedy under section 4112.05. This latter section refers to the OCRC, and not the EEOC. Plaintiff as required by federal law as a prerequisite to filing a claim under the ADEA, informed the OCRC of his charge. The charge would be processed by the EEOC and not by the state agency. There is no indication that Ohio intended to bar a plaintiff who went to the EEOC, seeking no remedy from the OCRC, from pursuing a claim under section 4101.17 where filing with the EEOC is required for the filing of a federal claim. Defendant’s interpretation would effectively mean that Ohio barred federal court pendent jurisdiction of claims under section 4101.17. Whether Ohio could do this if it wished or not, we do not believe it is the result envisioned by the Ohio legislature….
Based on these decisions and others that followed, the Court found that there was not sufficient authority to rule that Fortunato’s filing of an EEOC action equated to a charge filed with the OCRC, and therefore, it did not bar her state law age discrimination claim. Judge Gaughan finished her analysis by holding:
Although not directly on point, the Supreme Court of Ohio has shown reluctance in interpreting the election of remedies provision in such a way that would require a party to choose between state and federal judicial relief. Based on this reluctance, as well as the reasoning set forth in the Sixth Circuit opinions, which predict that the Ohio Legislature did not intend to bar federal court pendent jurisdiction of state statutory age discrimination claims, the Court finds that the filing of a charge with the EEOC is not an election of remedies pursuant to O.R.C. § 4112.08. This result is in line with the longstanding principle that state and federal employment discrimination procedures are intended to complement each other.
So, in laymen’s terms, according to this recent decision, an employee is allowed to file a charge of discrimination with the EEOC in order to protect a possible Age Discrimination in Employment Act (“ADEA”) claim without compromising the state law age discrimination claim. However, filing a charge with the OCRC would be a different story and would effectively bar the state law age discrimination claim.
Still a little confused about where, when and how to file your age discrimination claim? That is understandable. The employment discrimination laws are very tricky and filled with landmines that could blow your claim up at any time. That is why it is critical to find the best employment discrimination lawyer that you can find to guide you through filing an age discrimination claim.
If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at (216) 291-4744. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”
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