A bill before the Ohio Senate could thoroughly revamp how employees file complaints about workplace discrimination and harassment—and greatly benefit employers that have robust anti-discrimination and harassment policies and practices. Senate Bill 383 is a generally pro-employer piece of legislation that will probably draw union opposition.
If enacted—not a sure thing—the bill would require an employee complaining of discrimination or harassment to choose between filing an administrative charge with the Ohio Civil Rights Commission or filing a complaint in court. Currently employees may do both.
Either way, employees would have to file their complaints within one year of the alleged discriminatory act.
Noneconomic and punitive damages on all discrimination suits would be capped, depending on the employer’s size:
- 4 to 100 employees: $50,000
- 101 to 200: $100,000
- 201 to 500: $200,000
- More than 500: $300,000.
The bill would also sharply curtail individual liability, limiting it to employers, not individuals.
An employer could raise an affirmative defense to discrimination or harassment claims by showing it exercised reasonable care to prevent or promptly correct unlawful discriminatory or harassing behavior. It could do so by demonstrating a reasonable anti-discrimination and anti-harassment policy that includes a complaint procedure, and that the accusing employee unreasonably failed to take advantage of it.
To capitalize on that safe harbor, the employer would have to show that it took specific actions to:
- Publish its anti-discrimination/anti-harassment policy
- Inform employees of prohibited conduct and how to complain
- Acted upon internal complaints in a reasonable and prompt manner.
Note: It’s not clear whether S.B. 383 has enough legislative support to become law. Organized labor is likely to fight its passage.
Advice: Regardless of whether S.B. 383 becomes law, you should implement anti-discrimination and anti-retaliation policies that provide employees with reasonable ways to file complaints. Give them at least two avenues for filing harassment complaints.
Institute procedures for thoroughly investigating harassment and discrimination complaints. Have your attorney regularly review your policies and procedures.