The more things change, the more they stay the same. That nicely sums up a decision by the Ohio Supreme Court this week that at first glance appears to represent a fairly major change to Ohio law regarding supervisor liability in employment discrimination cases. In the end, though, the case is more of a technical change than a practical one.
First, we need a bit of background. In a 1999 case called Genaro v. Central Transport, Inc., the Ohio Supreme Court held that a supervisor can be held personally liable under Ohio’s employment discrimination laws. For technical legal reasons, the result was that Ohio employees working for large corporations headquartered in other states could keep their employment discrimination cases in Ohio state court instead of federal court (still in Ohio by the way) by naming the supervisor as a defendant as well the corporation. That is significant because it is widely believed by employment lawyers that—at least in cities like Cleveland—state court is often (but not always) more favorable for employees in employment discrimination cases.
A 4-3 Ohio Supreme Court decision this week suggests Genaro may not be long for this world. In Hauser v. The City of Dayton Police Department, the majority held that public sector supervisors cannot be held liable for employment discrimination in Ohio because of sovereign immunity. I won’t go into the technical details of the decision. But although the Court distinguished Genaro because that case involved private sector supervisors, it now appears to be just a matter a time before the Court overturns the case altogether. In fact, the majority opinion all-but stated the Court would overturn Genaro when given the chance. Without supervisor liability, many employees would be forced to litigate their employment discrimination claims in federal court, where their chances of success would tend to be lower.
The good news for employees, however, is that the Hauser decision explicitly held Genaro is not necessary to allow supervisor liability for employment discrimination. The Court held that another section of the Ohio Revised Code, 4112.02(J) to be precise, “already holds individual employees liable for their participation in discriminatory practices.” As a result, it appears that the practical effect of the Hauser decision will be minimal rather than dramatic. Employees will still be able to pursue employment discrimination claims against their employers in state court, albeit with a slightly different legal basis.
The key takeaway for employees is not whether Ohio law will or will not continue to recognize supervisor liability. It is that employment law in Ohio is very complex. You should not go it alone. There are simply too many mines and pitfalls to navigate without the help of an experienced Cleveland employment discrimination attorney to guide you.