The Idiosyncrasies of Ohio’s Employment Discrimination Law
By Keith Hansbrough, Esq.*
Ohio’s employment discrimination law presents many idiosyncrasies for defense attorneys who are accustomed to defending employment discrimination cases in other states or exclusively under federal law. Ohio’s employment discrimination laws are mostly concentrated in Ohio Revised Code Chapter 4112. This portion of the Ohio Revised Code makes it unlawful for employers to discriminate against individuals on certain grounds. Specifically, section 4112.02(A) of this Code states that it shall be an unlawful discriminatory practice for any employer, because of the race, color, religion, sex, military status, national origin, disability, age or ancestry of any person, to discharge any person without just cause, to refuse to hire or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment. This statutory provision closely follows the various federal laws. In fact, much of the case law interpreting Ohio Revised Code Chapter 4112 refers to one or more of the federal laws. For example, in determining what constitutes a disability under the definition in section 4112.01(A)(13), it is appropriate to look to federal law for guidance under the Americans with Disabilities Act. Pinchot v. Mahoning County Sheriff’s Department, 843 N.E.2d 1238 (Ohio App. 2005).
There are three major idiosyncrasies under Ohio employment discrimination law that are of particular importance:
- Ohio’s employment discrimination statute only requires four employees to subject an employer to its terms;
- Ohio law allows supervisors and managers to be held personally liable for their unlawful discriminatory actions; and
- Ohio has particular rules for plaintiff’s counsel’s dealings with a company’s employees.
First, the requisite number of employees an employer has before the employer becomes subject to the anti-discrimination laws is much smaller than that of most federal laws. Section 4112.01(A)(2) defines “employer” as any person employing four or more persons within the state and any person acting directly or indirectly in the interest of an employer.
Second, Ohio law allows supervisors and managers to be held personally liable for unlawful discriminatory acts committed by such persons. This issue of “personal employee liability” is unique to Ohio law and was established by the Ohio Supreme Court in Genaro v. Central Transport, Inc., 703 N.E.2d 782 (Ohio 1999). In Genaro, the court stated that the term “person” is defined very broadly by Ohio Revised Code section 4112.01(A)(1) as including one or more individuals. The court then took that interpretation of the language to find that section 4112.01(A)(2)’s definition of “employer,” by its very terms, encompasses individual supervisors and managers whose conduct violates the provisions of Ohio Revised Code Chapter 4112. As such, supervisors and managers can be personally liable.
Third, Ohio has particular rules for plaintiff’s counsel’s dealings with current and former employees of the company. Generally speaking, a plaintiff’s attorney representing an interest adverse to a defendant corporation may, in fact, communicate with certain current and/or former employees of the corporation without the consent of a corporation’s lawyer, even when defense counsel asserts a “blanket representation” of the corporation and all of its current and former employees. It is critical to analyze the appropriateness of the contact based upon whether the individual contacted is a former or current employee of the defendant corporation.
Many people tumble to the wrong conclusion that, if an individual currently works for a defendant corporation, plaintiff’s counsel may not ethically contact that individual. Ohio Advisory Opinion 2005-3 clearly states that such communication with a current employee of a defendant corporation is permissible under specific guidelines. Under Ohio’s ethical rules for legal counsel, such contact with current employees is only prohibited when one of three scenarios are present. The three instances where contact with a current employee is prohibited are:
- The current employee supervises, directs or regularly consults with the defendant corporation’s lawyer concerning the case; or
- The current employee has authority to obligate the defendant corporation with respect to the case; or
- The current employee’s act or omission with the case may be imputed to the defendant corporation for purposes of civil or criminal liability.
As to former employees of a defendant corporation, a plaintiff’s attorney may contact them without the consent of the defendant corporation’s legal counsel, as long as:
- The former employee is not represented by his or her own legal counsel in the case;
- The former employee has not asked the defendant corporation’s attorney to provide legal representation to him or her in the case;
- The former employee has consented to speak with the plaintiff’s attorney;
- The former employee has been informed by plaintiff’s counsel not to divulge any communications that the former employee may have had with defendant corporation’s attorney or other legal counsel; and
- The former employee was fully informed that the plaintiff’s counsel represents a client adverse to the defendant corporation.
In conclusion, Ohio’s employment discrimination laws make bringing a claim much easier than if stated under federal law and allow supervisors and managers to incur personal liability. Also, Ohio requires that defense counsel consider the scope of permissible contacts between a plaintiff’s attorney and former and current employees of the defendant company, and that they proactively seek to protect the interests of the company.
*Keith is a shareholder in our Cleveland, Ohio office who can be reached at 216.912.3809 or email@example.com.
Defense Digest, Vol. 20, No. 4, December 2014
Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.