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protect supervisors and managers from being found personally liable if it is determined that the individual acted outside the scope of their employment, retaliated against the plaintiff, or engaged in discriminatory practices. Moreover, the ELUA does not change the concept of vicarious liability under Ohio law; thus employers can still be found liable for the unlawful conduct of a supervisor.

The ELUA encourages employers to enforce robust anti-discrimination policies and ensure that employees are aware of and understand such policies. To assert the affirmative defense to harassment claims under the ELUA, employers must prove all of the following: (1) that it had an effective harassment policy; (2) that properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent and promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities. This is consistent with the “Faragher- Ellerth” defense available under federal law. An exception to the defense is if the complainant can prove that taking preventative or corrective action would have failed or would have been futile. The affirmative defense also cannot be used if an employer takes an adverse, tangible employment action against the complaining employee (such as a demotion, termination, or failure to hire or promote) arising out of the alleged harassment.

The ELUA officially recognizes discrimination claims as tort actions. Accordingly, such claims are subject to the damage caps specific under Ohio tort law. This means that a plaintiff generally may not recover more than $250,000 or three times their economic losses, up to $350,000 in noneconomic damages (such as emotional distress), and may not recover more than two times compensatory damages as punitive damages. Alternatively, if the employer is a “small employer” of 100 or fewer employees, a plaintiff may recover up to 10 percent of the employer’s net worth, up to $350,000, in punitive damages. An employment plaintiff may still recover economic damages such as back pay and attorneys’ fees.

Employees have the right to be free from workplace discrimination. The ELUA attempts to strike an appropriate balance between employee rights and employer obligations. The clarity and uniformity provided by the ELUA should equally benefit employees and employers. PLEASE NOTE: This article is for informational purposes and is not intended to constitute legal advice.

LABOR & EMPLOYMENT: Employment Litigators and Employers Welcome A Change to Ohio's Employment Laws continued from page 18

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