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Another Attack on Ohio Workers: Draft Bill Seeks to Gut Ohio’s Laws Prohibiting Sex, Age, Race, Disability and Other Forms of Discrimination by Eliminating Protections for Most Ohio Workers

An Analysis of the Ohio Chamber of Commerce’s Draft Senate Bill (Lsc 129 1782 – 1) by the Ohio Employment Lawyers Association

SUMMARY OF SOME KEY PROVISIONS

The draft bill to amend Ohio’s anti-discrimination laws is a transparent and cynical attempt to prevent employers and managers from being held accountable for even blatant harassment or discrimination directed at women, older workers, the disabled, minorities or religious employees. In fact, the proposed bill bans any lawsuits against individual managers or company officers for overt sexual harassment or intentional discrimination under the state’s anti-discrimination laws.

The draft bill also seeks to make discrimination cheap for employers through severe limits on what employees can recover for intentional discrimination or harassment. If this bill becomes law, the recoveries available to women, the disabled, older workers, religious employees and minorities for intentional discrimination and even the most vicious harassment will be different and far lower than those allowed in virtually all other types of lawsuits.

This anti-worker legislation will force employees who have been victims of intentional discrimination or harassment to go through internal company appeals before being allowed to file suit -- even if the company’s process is designed to be one-sided, ineffectual, or for the protection of the company only. Under this proposal, an employer can force a woman who has been harassed to first appeal to the manager who sexually harassed her before being allowed to go to court, even if the harassment is still ongoing.

The draft bill imposes extremely short deadlines on employees to file suit in court. In unfair contrast, the draft bill allows an employer to give itself an unlimited amount of time to respond to any internal appeal, effectively blocking the employee’s access to court altogether. The bill has no protections or standards that require employer internal procedures and policies to be fair, effective, or even actually enforced.

If this were not bad enough, this anti-worker legislation proposes that any discrimination case should be dismissed if the employee did not somehow “avoid” the discrimination. In other words, instead of holding the company and its managers responsible for their personal acts of discrimination, the draft bill holds employees responsible for not somehow avoiding the discriminatory acts of racist, sexist, ageist, or otherwise prejudiced managers and company officials. Of course, there is no explanation in the bill of how employees are supposed to that. Do they have to give up their jobs?

The draft bill itself actually contains one of the most discriminatory stereotypes of older workers, which the age discrimination laws were designed to fight. The bill, by redefining who is covered by its age discrimination provisions, creates a presumption that any worker who is forty years of age or older is not physically able to perform the duties and other job requirements of any position, and must therefore prove his or her physical abilities in order to even consider legal action. No such language has ever been part of Ohio or federal age discrimination statutes over the many years the laws have been on the books.

Worse, the draft bill applies the extremely short time limits, special defenses, and severe caps on compensation it proposes only to employees – not employers. In other words, while employees will face one of the shortest time limits in Ohio law for filing a legal claim, the most severe caps on compensation for proven wrongdoing, and new and insurmountable employer legal defenses, none of these draconian provisions would apply to lawsuits filed by employers – even when they sue employees.

The changes proposed in the draft bill create new defenses and limitations that do not exist under numerous federal civil rights laws or existing Ohio law. The draft bill eliminates remedies and protections that have been the law of Ohio for many years and are consistent with federal laws. The draft bill does not mirror federal civil rights laws, as has been claimed. Finally, the draft bill even tries to prevent the public and employees from having access to previously available information about prejudiced employers by sealing the investigations of the Ohio Civil Rights Commission even after the Commission has issued its initial determination.

A complete analysis of the attempt to gut Ohio's anti-discrimination law is here:

http://www.oelasmart.net/lawapp/documents/oela_position_paper_chamber_draft_bill_final.pdf

For additional information on this attempt to gut Ohio's anti-discrimination laws, please contact:

Andrew Margolius
Margolius, Margolius & Associates
55 Public Square
Suite 1100
Cleveland, OH 44113

216-621-6214

or

Fred Gittes
The Gittes Law Group, LLC
723 Oak Street
Columbus, OH 43205

614-222-4735

12/09/2011