As a continuation of the Faruki PLL series on some of the risks relating to employee departures and highlighting employer's options regarding minimizing those risks, this second part introduces the federal, state, and a few local equal employment opportunity laws.
While Ohio is an employment-at-will state, the federal, state, and local equal employment opportunity laws limit an employer's right to terminate an employee at will. Employers should stay up to date on these equal employment opportunity laws because some federal, state, or local laws may be more restrictive than others.
The federal equal employment opportunity laws prohibit an employer from discriminating against an employee throughout employment, including at termination, based on certain protected characteristics or classes. The following list includes federal equal employment opportunity laws that employers should be familiar with:
Damages for non-compliance with these laws include reinstatement, back pay, retroactive seniority status, other monetary penalties, attorneys' fees, and potentially injunctive relief (court orders requiring an employer to take particular actions). Further, for willful violations of the ADEA or the USERRA, the employee may also be able to recover liquidated damages.
The Ohio Civil Rights Act of 1959 ("Ohio Civil Rights Act") prohibits an employer with four or more employees from discriminating against employees on the basis of their race, color, religion, sex, military status, national origin, disability, age, or ancestry.
As an Ohio employer has to comply with the most restrictive law applicable to it, all Ohio employers with four or more employees are prohibited from terminating an individual on the basis of their race, color, religion, sex, military status, national origin, disability, pregnancy, age, or ancestry.
Damages for non-compliance with the Ohio Civil Rights Act include injunctive relief, monetary damages, back pay, and attorneys' fees.
Some Ohio localities have their own form of equal employment and opportunity laws. In Cincinnati, employers with ten or more employees are prohibited from discriminating against employees based on the employee's race, natural hair types and styles commonly associated with race, gender, age, color, religion, disability, marital status, sexual orientation or transgender status, or ethnic, national or Appalachian regional origin. Penalties for noncompliance include a $100 daily fine up to $1,000 total. Continued noncompliance can result in a misdemeanor charge.
In Dayton, employers with four or more employees are prohibited from discriminating against employees on the basis of race, color, religion, sex, sexual orientation, pregnancy, gender identity, national origin, place of birth, age, marital status, familial status, or disability. Employers that run afoul are subject to a hearing, followed by a cease and desist letter. Failure to comply with the cease and desist letter may expose the employer to a misdemeanor.
The understanding of applicable equal employment opportunity laws is only the tip of the iceberg of the legal issues surrounding involuntary termination of an employee. Below are the top 5 things, to be discussed more thoroughly later in the blog series, that employers should consider to protect themselves from employment discrimination lawsuits pursuant to the equal employment opportunity laws:
Employers should draft clear policies stating what types of behavior shall be the basis of termination. Clear policies are crucial for employers to cite when defending a discrimination suit; employers can point to the termination policies to prove the employee was fired for violation of the policy and not for other reasons. These policies should include an anti-harassment policy. Anti-harassment policies help employers defend their termination decisions based on an employee engaging in harassment.
Once a termination policy is created, employers should apply that policy to all employees consistently. Employers that do not apply the termination policy consistently risk exposure to accusations that the employer applied the policy in a discriminatory manner.
Managers, supervisors, and other decisionmakers should undergo regular training regarding the equal employment opportunity laws and how to communicate with legal and human resources regarding potential termination decisions. Effectively trained higher-level employees are the first line of defense for employers to mitigate the risk of potential discrimination lawsuits.
Documentation is a key asset for defending discrimination lawsuits. Documentation will help employers establish the nondiscriminatory reason for the termination. Employers should consider documenting the following:
Once the termination takes place, employers should consider implementing a severance or separation agreement that includes an explicit waiver and release of legal claims for adequate consideration. This agreement should be drafted by counsel as there are many considerations, including tax issues, to take into account when presenting a former employee with this kind of agreement.
Watch this space for more advice relating to employment best practices in future posts in this space.