To effectively represent a client who has fallen victim to workplace
discrimination, it is necessary that counsel understand similarities and
differences between Ohio and federal employee discrimination law.
Federal law makes it illegal to discriminate against employees and
job applicants based on certain prohibited categories of discrimination.
So too does Ohio law in R.C. 4112.02(A), but there are some basic
differences between Ohio and federal employment discrimination law that
Ohio practitioners should know.
Prohibited categories of discrimination under Ohio and federal law
Revised Code 4112.02(A) prohibits discrimination “because of the race,
color, religion, sex, national origin, disability, age or ancestry of
any person.” With one exception, the prohibited categories of
discrimination are virtually the same under federal law. The
prohibitions under federal law, however, are spread out among several
Title VII of the Civil Rights Act of 1964 prohibits discrimination in
employment on the basis of an individual’s “race, color, religion, sex,
or national origin.”1 The Age in Employment Act (ADEA) prohibits discrimination on the basis of age.2 The American with Disabilities Act (ADA) prohibits discrimination on the basis of disability.3
Title II of the Genetic Information Nondiscrimination Act of 2008
(GINA), prohibits discrimination in employment on the basis of genetic
While the Ohio statute references “ancestry” as a protected
classification and federal law (Title VII) does not, the U.S. Supreme
Court has noted in this regard that the legislative history of Title VII
“suggest that the terms ‘national origin’ and ‘ancestry’ were
considered synonymous.”5 Thus, the only true difference
between Ohio and federal law, in terms of prohibited categories, appears
to be with respect to genetic information discrimination under GINA,
which took effect on Nov. 21, 2009, and is still relatively new.
Both Ohio and federal law also have provisions prohibiting retaliation
Ohio and federal law have anti-retalia¬tion provisions that prohibit
employers from retaliating against employees who oppose discriminatory
practice(s) or who file or participate in a charge of discrimination.6
There is also a federal and Ohio Equal Pay Act prohibiting discrimination
addition to Title VII, the ADA, the ADEA and the Ohio Fair Employment
Practices Act, R.C. Chapter 4112, both federal and Ohio law have an
Equal Pay Act. The federal Equal Pay Act forbids gender-based
discrimination in pay such that employees who do the same work are
compensated at the same rate, regardless of sex.7 The Ohio
Equal Pay Act forbids wage discrimination on the basis of sex, but goes
further and forbids it on the basis of race, color, religion, age,
national origin or ancestry as well.8
Of course, Title VII, the ADA, the ADEA and GINA all specifically prohibit discrimination in “compensation.”9
Title VII and the federal Equal Pay Act therefore both prohibit sex
discrimination in compensation. Despite that fact, the two statutes are
not identical in that regard. “Title VII broadly prohibits
discriminatory compen¬satory practices, while the Equal Pay Act is more
targeted in that it only prohibits sex-based differentials in
substantially equal jobs in the same establishments.”10 While
a practice that violates the federal Equal Pay Act should also violate
Title VII, the converse of that is not necessarily true. Compensation
discrimination in violation of Title VII can exist in a number of forms,
and the same would appear to be true under the other federal statutes.
It is interesting to note that unlike the federal statutes, R.C.
4112.02 does not specifically refer to discrimination in “compensation,”
“wages” or “pay.”11 According to one authority on Ohio
employment law, “it remains unsettled whether a plaintiff may claim wage
discrimination under Ohio’s general employment discrimina¬tion statute,
RC 4112.02.”12 Despite this admonition, some cases suggest otherwise, at least with respect to sex-based wage discrimination claims.13
Ohio has provision prohibiting “aiding and abetting” unlike federal law
Ohio Fair Employment Practices Act makes it unlawful “[f]or any person
to aid, abet, incite, compel, or coerce the doing of any act declared by
this section to be an unlawful discriminatory practice, to obstruct or
prevent any person from complying with this chapter or any order issued
under it, or to attempt directly or indirectly to commit any act
declared by this section to be an unlawful discriminatory practice.”14
There is no similar provision in federal law under Title VII and other Federal Civil Rights statutes.
Both federal and Ohio have an agency that performs an important role
the federal government and the state of Ohio have an agency that
performs an important role in administrating their respective
discrimination laws—the U.S. Equal Employment Opportunity Commission
(EEOC) and the Ohio Civil Rights Commission (OCRC).
The EEOC is a federal agency responsible for enforcing Title VII, the
ADA, the ADEA and GINA that make it illegal to discriminate in
employment. The EEOC also enforces the federal Equal Pay Act. Most
employers with at least 15 employees are covered by these laws (20
employees in age discrimination cases).15
The EEOC has the authority to investigate charges of discrimination
against employ¬ers. Its role in an investigation is to assess the
allegations in the charge and make a finding whether there is
“reasonable cause” to believe that the charge is true. If the EEOC finds
reasonable cause to believe that discrimination occurred, it will seek a
conciliation agreement with the employer.16 If the EEOC is
not successful, it has the authority to file a lawsuit on behalf of the
employee or the employee has the right to file suit on his or her own
behalf.17 Further, even if the EEOC finds that there is no
“reasonable cause” it will dismiss the complaint and inform the employee
of his or her right to institute a civil action against the employer.18
The OCRC is a state agency that serves a similar function to the EEOC
and is ad¬ministratively responsible for enforcement of Ohio’s general
employment discrimination statute, R.C. 4112.02 but not the Ohio Equal
Pay Act.19 Employers employing four or more persons are subject to R.C. 4112.02.20
If an individual files a charge with the OCRC, the OCRC investigates
and makes a finding of “probable cause” or “no probable cause.” If
“probable cause” is found, the OCRC must attempt to settle the matter by
negotiating a conciliation agreement. If conciliation is unsuccessful,
the OCRC conducts a formal administrative hearing following which it
makes a determination whether the employer has engaged in an unlawful
discriminatory practice.21 In contrast to the EEOC, the OCRC
has the power to adjudicate claims. Either the employer or employee
claiming to be aggrieved by the final decision of the OCRC may obtain
judicial review from the Ohio court of common pleas.22
It should be noted that Ohio is known as a deferral state, which
means it is a state that has an antidiscrimination mechanism. With
regard to deferral states, federal law permits the EEOC to defer to its
state agencies for processing of charges asserting claims that are
common to both federal and state law. Consequently, in Ohio, although an
individual may file a charge with the EEOC, the EEOC may refer such
charge to the OCRC. Further, the OCRC and EEOC have entered into a work
sharing arrangement that provides dual filing for employment charges.
The time charges must be filed withthe EEOC and OCRC is different
Revised Code 4112.05(B) requires that a charge alleging an unlawful
discrim¬inatory practice be filed with the OCRC within six months after
the practice occurred. In this regard, it is important to note that age
discrimination claims brought under Ohio law are subject to an election
of remedies scheme. Where an employee claims age discrimination, Ohio
statutes provide four avenues of relief: (1) R.C. 4112.05(B) permits
aggrieved employees to file an age discrimination charge with the OCRC;
(2) R.C. 4112.14(B) allows a civil suit where an otherwise able employee
aged 40 or older is discharged without cause in violation of R.C.
4112.14(A); (3) R.C. 4112.02(N) allows civil suit where an employee has
been discharged based on age in violation of R.C. 4112.02(A); and (4)
R.C. 4112.99 provides for a civil action for any violation of R.C.
Chapter 4112.23 Thus, where an employee files an age discrimination
charge with the OCRC, Ohio’s election of remedies framework precludes
such employee from later bringing civil suit under one of these other
avenues. Filing a claim with the EEOC can count as seeking relief from
Title VII, the ADEA, the ADA and GINA set forth two time periods in
which a discrimination charge must be filed with the EEOC—either 180 or
300 days after an “alleged unlawful employment practice occurred.”25
The U.S. Supreme Court has explained the time period in which a
discrimination charge must be filed: “In a State that has an entity with
the authority to grant or seek relief with respect to the alleged
unlawful practice, an employee who initially files a grievance with that
agency must file the charge with the EEOC within 300 days of the
employment practice; in all other States, the charge must be filed
within 180 days.”26 Although the Supreme Court had been
referring to a charge filed under Title VII, this same rule clearly
applies to charges filed under the ADEA, the ADA and GINA. The 300-day
time period is generally applicable to charges filed in Ohio since Ohio
has a state law prohibiting employment discrimination and a state agency
(the OCRC) to investigate such claims but because there is no state law
equivalent to GINA under Ohio law, practitioners would be wise to use
the 180-day time period for GINA claims.
These time periods have no application to an individual alleging a
violation of either the federal or Ohio Equal Pay Act. As noted, the
OCRC is not vested with jurisdiction over enforcement of Ohio’s Act.
There is a one-year statute of limitations for an Ohio equal pay claim.27
While the EEOC has enforcement authority under the federal Act, the
time limit for filing an equal pay charge with the EEOC is the same as
the time limit for going to court: within two years of the alleged
unlawful compensation practice or, in the case of a willful violation,
within three years.28 Further, the filing of an EEOC charge under the federal Equal Pay Act does not extend the time frame for going to court.29
Federal law has exhaustion requirement while Ohio law does not
VII, the ADA, the ADEA and GINA (but not the federal Equal Pay Act) all
require employees to exhaust their administrative remedies before
seeking judicial relief. Employees must satisfy this requirement by
filing an administrative charge with the EEOC. The charge enables the
EEOC to investigate and, if appropriate, negotiate a resolution with an
employer. The employee may sue the employer in federal court only after
administrative efforts have been exhausted.
On the other hand, R.C. Chapter 4112 offers employees two options:
employees may seek administrative relief by filing a charge with the
OCRC, or employees can file a civil suit in a court of common pleas. It
is also clear that an employee can file a civil action without having
invoked the jurisdiction of the OCRC. Further, with the one exception of
an age discrimination claim, filing of a charge of discrimination with
the OCRC does not preclude the employee from filing the civil action.
In short, federal law requires an exhaus¬tion of administrative
remedies while there is no such requirement under R.C. Chapter 4112.
This can be significant. In deferral states such as Ohio, charges must
be filed with the EEOC within 300 days of the alleged discriminatory
act. While charges must be filed with the OCRC within an even shorter
period—180 days of the alleged discriminatory act, the Ohio Supreme
Court has held that a six-year statute of limitations is applicable to
the civil action.30 Therefore, employees can wait almost six years
before asserting a claim under the Ohio statute.
Harold C. Reeder is the managing
as¬sociate general counsel of the Cuyahoga Metropolitan Housing
Authority where his practice focuses on labor and employment law.
1 42 U.S.C. §2000e-2(a)(1).
2 29 U.S.C. §623.
3 42 U.S.C. §12112.
4 42 U.S.C. §2000ff, et seq.
5 See Espinoza v. Farah Mfg., 414 U.S. 86, 89 (1973).
6 R.C. 4112.02(I); 42 U.S.C. §2000e–3(a); 29 U.S.C. §623(d); 42 U.S.C. §12203(a); 42 U.S.C. §2000ff-6(f).
7 29 U.S.C. §206.
8 R.C. 4111.17.
9 42 U.S.C. §2000e-2(a)(1); 29 U.S.C. §623(a)(1); 42 U.S.C. §12112(a); 42 U.S.C. §2000ff-1(a).
10 EEOC Compliance Manual, Questions and Answers on Compensation Discrimination (2000).
11 R.C. 4112.02(A).
12 Siegel and Stephen, Baldwin's Ohio Handbook Series Ohio Employment Practices Law, Section 17:21 (2013).
13 See e.g., Birch v. Cuyahoga County Probate Court,
392 F.3d 151, (6th Cir. 2004) (stating that R.C. Chapter 4112 “provides
a civil remedy for sex-based wage discrimination under §4112.02”); Kroh v. Cont’l Gen. Tire, Inc.,
No. 19414, 1999 WL 1215167, at *2 and *1 (Summit App. Dec. 15, 1999)
(stating “claims alleging unequal pay, pursuant to either R.C. 4111.17
or R.C. 4112.02, are subject to the analysis employed under the Federal
Equal Pay Act” in case “alleging sex discrimination pursuant to R.C.
4112.02 and 4112.99”) rev’d on other grounds, 92 Ohio St.3d 30, 748
N.E.2d 36 (2000).
14 R.C. 4117.02(J).
See 42 U.S.C. §2000e(b) (defining “em¬ployer” for purposes of Title
VII); 42 U.S.C. §12111(5)(A) (defining “employer” for purposes of the
ADA); 29 U.S.C. §630(b) (defining “employer” for purposes of the ADEA);
42 U.S.C. §2000ff(2)(B) (defining “employer” for purposes of GINA).
16 42 U.S.C. §2000e-5(b); 29 U.S.C. §626(b); 42 U.S.C. §12117(a); 42 U.S.C. §2000ff-6.
17 42 U.S.C. §2000e-5(f)(1); 29 U.S.C. §626(b); 42 U.S.C. §12117(a); 42 U.S.C. §2000ff-6.
18 42 U.S.C. §2000e-5(f)(1); 29 U.S.C. §626(c); 42 U.S.C. §12117(a); 42 U.S.C. §2000ff-6.
19 Harden v. Dayton Human Rehab. Ctr.,
520 F. Supp. 769, 774 (S.D. Ohio 1981) (noting that “the EEOC and Ohio
Civil Rights Commission are charged by law with the performance of
20 R.C. 4112.01(A)(1) (defining “employer” for purposes of R.C. Chapter 4112).
21 See R.C. 4112.05.
22 R.C. 4112.06.
23 Oliver v. St. Luke’s Dialysis, LLC, No. 1:10-CV-2667, 2011 WL 1326251, at *3 (N.D. Ohio Apr. 5, 2011); Dunn v. Bruzzese, 172 Ohio App.3d 320, 331, 874 N.E.2d 1221, 1229 (7th Dist. 2007).
24 Dunn, 172 Ohio App.3d at 331, 874 N.E.2d at 1229.
42 U.S.C. §2000e–5(e)(1); 29 U.S.C. §626(d)(1); 42 U.S.C. §12117(a)
(ADA provision incorporating by reference Title VII’s provision, 42
U.S.C. §2000e-5(e)(1)); 42 U.S.C. §2000ff-6(a)(1) (referencing the Civil
Right Act of 1964).
26 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
27 R.C. 4111.17(E).
29 U.S.C. §255(a) (limitations period for court actions). The EEOC
website plainly states that the time period for filing an equal pay
charge with it is the same as for going to court. See
29 This too is clearly stated on the EEOC website at the web address above.
30 Cosgrove v. Williamsburg of Cincinnati Management Co., Inc., 70 Ohio St.3d 281, 638 N.E.2d 991 (1994).