If you are a longtime reader of this blog, you will already know that Ohio’s scheme of civil rights protections is set forth in R.C. Chapter 4112. Further, you may be aware that R.C. § 4112.02 prohibits multiple forms of discrimination based on race, color, religion, sex, military status, national origin, disability, age, or ancestry. These prohibitions can be broken down as follows:
- C. § 4112.02(A): by an employer regarding employment;
- C. § 4112.02(B): by an employment agency regarding job placement services;
- C. § 4112.02(C): by a labor organization regarding its membership and advocacy for its members;
- C. § 4112.02(D): by anyone operating an apprenticeship program;
- C. § 4112.02(E): by any of the above, to take certain actions, including improperly seeking out information about one’s protected class status, publish or advertise a position discriminating based on these protected class statuses, set up a quota system based on these statuses, or use a discriminatory referral service;
- C. § 4112.02(F): by an employee to publish their protected class status or to indicate that they prefer not to work for an employer of a certain protected class;
- C. § 4112.02(G): by an owner or employee of a place of public accommodation (a place held open to the public) denying access to a given protected class;
- C. § 4112.02(H): by anyone involved with real estate (sellers, landlords, realtors, lenders, etc.);
- C. § 4112.02(I) prohibits discrimination against anyone who has opposed any unlawful discriminatory practice; and
- C. § 4112.02(J) prohibits anyone from assisting in discrimination, preventing non-discrimination, or otherwise attempting to discriminate that violates this chapter.
As you’ll note, each subsection covers a distinctive arena in which discrimination can occur and in which the General Assembly wished to protect Ohioans from such discrimination.
Since Spitz is the Employee’s Law Firm, we’re focused specifically on discrimination against employees that relate to their employment. R.C. § 4112.01(A)(24) gives us a definition for “unlawful discriminatory practice relating to employment” – doesn’t that just roll off your tongue! – that encompasses, in subsections (a) and (b) two separate sets of discriminatory acts that can be taken in workplace situations. These are:
- The employment-related activities identified in R.C. § 4112.01(A)(24)(a) and detailed in R.C. § 4112.02(A)-(F) relating to employers, employees, recruiters, unions, and apprenticeships;
- Activities related to or derived from the above activities, such as retaliating against opposition to such discrimination (R.C. § 4112.02(I)) or assisting in such discrimination (R.C. § 4112.02(J)) are separately set out in R.C. § 4112.01(A)(24)(b).
(You will note that R.C. § 4112.02(G) relating to public accommodations and R.C. § 4112.02(H) relating to real estate do not make this list, as neither directly relate to employment.) Despite all of the acts above constituting “unlawful discriminatory practice relating to employment” the legislature took the time to break these out into two subsections – why? Lets find out!
The astute reader may note that the legislature distinguishes between direct discriminatory acts (R.C. § 4112.01(A)(24)(a)) and indirect discriminatory acts (R.C. § 4112.01(A)(24)(b)), such as assisting discrimination or retaliating against opposition to discrimination. If you’ve made it this far into the article (congratulations!) you may be wondering why this matters, aside from showing that the drafter of this law likely did well with the LSAT analogy section? Well, by diving deeper into R.C. Chapter 4112 (which Spitz will do for you) you uncover a meaningful difference in the administrative process for each class of claims.
Prior to filing suit on an employment claim in Ohio, you must do what we as lawyers call “exhausting your administrative remedies”. Translated into English, this means that courts don’t want to hear your claim unless you have already taken it through an administrative complaint process. This is done by filing an administrative charge with the Ohio Civil Rights Commission (“OCRC”) or Equal Employment Opportunity Commission. As you can expect, any failure to properly state your claim in the administrative charge can lead to negative consequences once you get to court – which is why you should have the experienced attorneys at Spitz assist you with this! Only those claims and parties properly charged can later be sued.
Circling back to R.C. § 4112.01(A)(24), we see that the legislature provides a special grace to persons filing retaliation (R.C. § 4112.02(I)) or aiding and abetting (R.C. § 4112.02(J)) claims. Specifically, R.C. § 4112.052(B)(4), provides that:
(4) With respect to an unlawful discriminatory practice relating to employment described in division (A)(24)(b) of section 4112.01 of the Revised Code, a charge filed with the Ohio civil rights commission or the equal employment opportunity commission satisfies division (B)(1)(a) or divisions (B)(2)(b)(i) and (ii) of this section if both of the following apply:
(a) The charge is related to the conduct alleged in the complaint for the civil action;
(b) The charge is filed against the person who committed the unlawful discriminatory practice, the employer of the person who committed the unlawful discriminatory practice, or both the person who committed the unlawful discriminatory practice and the person’s employer.[34]
The language “satisfies division (B)(1)(a) or divisions (B)(2)(b)(i) and (ii)” simply means that one has filed a valid charge of discrimination. A charge of retaliation or aiding and abetting discrimination is valid if it names the person responsible or their employer.
This is extremely important because, as I see every day as an employment lawyer, employees do not necessarily know the full names of the persons who discriminated against them. While you may be able to ask a former coworker, or use publicly-available information, such as employer websites, LinkedIn, Facebook, or other internet sources, to find out this information, sometimes even those efforts can prove futile. Employers, having immediate access to their employment records, are often in a far better position to know the full names of those involved in a given discriminatory action. And you can bet that, without the tools provided in civil discovery, employers won’t be volunteering those names to you any time soon.
R.C. § 4112.052(B)(4) is the Ohio legislature’s common-sense response to this innate power imbalance. Because Ohio’s Employment Law Uniformity Act mostly abolished claims against individual employees (such as supervisors or other collaborating with the employer to discriminate) under R.C. § 4112.02(A), claims under R.C. § 4112.01(I) for retaliation and (J) for aiding and abetting are the primary Ohio law employment discrimination claims that can be brought against individuals. By allowing a charge against the employer to suffice for the individual for R.C. § 4112.01(I) & (J) claims, the General Assembly ensured that this disparity in information wouldn’t operate to shield individual bad actors in anonymity.
In Bennis v. Nationwide Children’s Hospital, The Honorable Judge Andria C. Noble addressed this very same issue and held that administrative remedies were properly exhausted against an individual when the plaintiff (the employee alleging discrimination) filed an OCRC charge against that individual’s employer:
The language of RC. 4112.052(B)(4) is clear and unambiguous. R.C. 4112.052(B)(4)(b) clearly permits a charge to be filed “against the person who committed the unlawful discriminatory practice, the employer of the person who committed the unlawful discriminatory practice, or both the person who committed the unlawful discriminatory practice and the person’s employer.” (Emphasis added). If the Legislature had intended to require a person to exhaust their administrative remedies exclusively by filing a charge against the individual who committed the unlawful discriminatory practice before filing a civil action against that individual for retaliation or aiding and abetting, they would not have provided alternative options to satisfy that requirement.
In this case, Plaintiff filed a charge with the OCRC against NCH on April 12, 2022. It is undisputed that NCH employed Tighe. Plaintiff received her right to sue letter on September 29, 2022. … Therefore, the Court finds that Plaintiff complied with R.C. 4112.052(B)(4)’s requirement that she exhaust her administrative remedies prior to filing suit against Tighe.[35]
If you retaliate against your employees’ reports of what they reasonably believe to be discrimination or assist your employer in discriminating against others, anonymity cannot shield you from the just consequences that Spitz will bring to you. And if you are an employee who has faced discrimination in the workplace, your lack of a photographic memory is no bar to obtaining justice. However, the path to justice can be a long and tangled one, and as you set out on that journey, you need to make sure that you have the right partner – Spitz, the Employee’s Law Firm.
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