Modern medicine and technology are allowing humans to live longer, healthier lives. The result is the number of workers remaining in the workforce into their older years is on the rise. In December 2013, the Bureau of Labor Statistics projected that by the year 2022, 31.9% of workers ages 65-74, traditional retirement age, will still be working. That would mark an over 10% increase since 2002, when 20.4% of workers from that age group remained in the workforce. Despite millennials entering the labor market in large numbers, the median age of U.S. workers is expected to rise from 41.9 years old in 2014 to 42.4 years old by 2024. As the labor force ages, the number of age discrimination claims under both federal and state law is likely to rise, and older workers need to be aware of certain aspects of Ohio’s age discrimination laws that are neither intuitive nor obvious.
Ohio Protects Against Age Discrimination in the Workplace
The Ohio Revised Code (“ORC”) provides protection against age discrimination in the workplace. There are four avenues for vindicating your right to be free from such discrimination under Ohio law.
- ORC 4112.02(A) states that it is unlawful for an employer to discriminate on the basis of age. This prohibition encompasses many employer actions, including but not limited to, discharge without just cause, refusal to hire, denial of privileges, and failure to promote. 4112.02(N) permits individuals to sue employers for age discrimination prohibited by 4112.02(A).
- ORC 4112.14(A) prohibits employers from discriminating in job openings against any applicant or discharging without just cause any employee age 40 or older who otherwise is able to perform and meet job requirements. 4112.14(B) permits individuals to sue for violations of 4112.14(A).
- ORC 4112.05(B) allows a person to obtain administrative relief by filing a charge with the Ohio Civil Rights Commission (“OCRC”), alleging another person, including an employer, has engaged in unlawful discrimination under 4112.02.
- ORC 4112.99 provides the right to sue those who violate any part of Chapter 4112, including the prohibitions against age discrimination.
Mutually Exclusive Avenues
In addition to these four possible avenues for claims of employer age discrimination, Ohio also has something called the “election of remedies.” This is explicitly stated in 4112.02(N), 4112.14(B), and 4112.08 (concerning charges filed with the OCRC under 4112.05). Basically, relief for age discrimination under 4112.02, 4112.14, and 4112.05 is mutually exclusive. Choosing one bars you from pursing your age discrimination claim using either of the other two. Additionally, even though the more general 4112.99 says nothing about an election of remedies, courts have found that age discrimination claims brought under 4112.99 can be barred if the plaintiff first filed a charge with the OCRC.
For example, in Rozek v. Ampro Computers, Inc., 37 F.Supp.3d 918 (N.D.Ohio 2014), the Federal District Court for the Northern District of Ohio dismissed the plaintiff’s 4112.02, 4112.14, and 4112.99 age discrimination claims because the plaintiff had filed a charge of age discrimination with the OCRC prior to bringing suit. As a general illustration, if you bring an age discrimination suit under 4112.14(B), you are barred from filing a civil action under 4112.02(N) or filing a charge with the OCRC based on the same impermissible practices complained of in your 4112.14 suit. Understanding this election of remedies is key because as explained below, the differences among the various avenues for relief have important consequences.
This is further complicated because the federal Age Discrimination in Employment Act (“ADEA”) requires potential plaintiffs to initiate state administrative proceedings prior to filing an ADEA suit. This appears to create a Catch-22, where an individual can’t simultaneously pursue both their federal and state claims in court because of the election of remedies. However, courts have held that filing with the OCRC does not bar civil action if you specify that the filing of the charge is only to perfect your ADEA claim or if the filing occurs after you have filed suit for age discrimination under Ohio law. Some courts have applied the same standard to filing with the federal Equal Employment Opportunity Commission (“EEOC”).
Differing Statutes of Limitations
Another issue created by Ohio’s four different options for age discrimination claims is the differing statutes of limitations. Age claims brought under 4112.02(N) are subject to a 180-day statute of limitations. Age claims brought under 4112.14(B) are subject to the 6-year statute of limitations generally applicable statutory liability, ORC 2305.07. A charge with the OCRC must be filed within the 6 months after the discriminatory practice was committed.
The statute of limitations for age claims brought under 4112.99 has been described as an area of unsettled law. In 1994, before 4112.14 was added to Chapter 4112, the Ohio Supreme Court, finding that specific provisions apply over general ones absent legislative intent to the contrary, held that 4112.99 age claims had to comply with the 180-day statute of limitations under 4112.02(N). The Ohio Supreme Court has not directly addressed if or to what extent the addition of 4112.14, with its 6-year statute of limitations, affects the limitation on 4112.99 age claims.
Why These Issues Matter
While all of the above can sound like legalistic gobbledygook, the issues discussed can have very real consequences. For example, age claims under 4112.02(N) can result in an award of compensatory and punitive damages, whereas those damages are unavailable for claims under 4112.14(B). On the other hand, 4112.14(B) explicitly allows for recovery of reasonable attorney’s fees while 4112.02(N) does not. The remedies available under 4112.05 are also limited. Additionally, 4112.14 does not entitle a plaintiff to a jury trial. The damages and relief available for age claims under 4112.99 are based on what specific section was alleged to have been violated. In Campolieti v. Cleveland Dept. of Public Safety, 8th Dist. Cuyahoga No. 99445, 2013-Ohio-5123, the plaintiff was limited to the damages provided under 4112.14(B) because he only alleged violations of 4112.14 and 4112.99. Since the 4112.99 claim was clearly based on a violation of 4112.14, the latter section’s damages applied. Also, while 4112.02 provides broader relief and covers more discriminatory acts than 4112.14, you have substantially less time to take advantage of the former’s broad scope.
This illustrates the importance of choosing the correct avenue for pursuing an age discrimination claim in Ohio and the importance of doing so expeditiously. There are pros and cons to each. While relief under 4112.14 and 4112.05 is not as broad as relief under 4112.02, 4112.14 provides more time to bring a claim and filing with the OCRC can save substantial litigation costs. Those inexperienced with the nuances might inadvertently foreclose certain relief because they do not understand the election of remedies, the differing statutes of limitations, and the different coverage of each statute. Victims should seek qualified counsel as soon as possible in order avoid this and to keep their options open.
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