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Sexual harassment has been a problem in the United States since women began entering the workplace in large numbers. Under both federal law and Ohio law, sexual harassment is a form of gender discrimination. You enjoy the protections of Ohio sexual harassment law, codified in the Ohio Fair Employment Practices Law, if you work for or submit an application to an Ohio employer with four or more employees.
What is Sexual Harassment?
Sexual harassment is harassment because of your gender. It might take the form of sexual advances or derogatory sexual comments. Words or conduct that are simply insulting or offensive to your gender, however, can also constitute sexual harassment. The person who is harassing can be your supervisor, a supervisor in another department, a co-worker, or even a client. They don’t have to be of the opposite gender.
What is Not Sexual Harassment
Isolated teasing or off-handed comments are insufficient to constitute sexual harassment under Ohio law. Instead, the offending words or conduct must be frequent or severe enough to create an offensive or hostile work environment. It can also constitute sexual harassment if it causes you to be fired or demoted.
This makes sense when you think about it. If offensive words or behavior render your workplace unbearable, you might as well have been fired because of your gender. Why should your employer be able to hound you out of work when firing you would have been illegal? Sexual harassment law removes this loophole.
Filing a Sexual Harassment Lawsuit: The Red Tape
It takes a while to take a sexual harassment claim from the complaint stage to the courtroom. Changes in Ohio sexual harassment law in late 2020 erected additional barriers to compensation. Now, a sexual harassment claim must go through the Ohio Civil Rights Commission (OCRC) before it can get into court.
Step 1 is to file a sexual harassment complaint with the OCRC. Next, the OCRC will notify your employer and investigate your claim. Since your employer can be sued for retaliating against you in response to your sexual harassment claim, your employer will probably not arbitrarily fire or demote you before your claim is resolved.
In Step 3, the OCRC offers you and your employer mediation services in an attempt to resolve the claim. Either one of you can refuse the offer, or you can attempt mediation. If you elect mediation but it is unsuccessful, the OCRC will proceed to Step 4 by hiring an investigator. The investigator will request a statement from your employer.
If the investigator finds probable cause that your claim is valid, the Ohio Attorney General will proceed to Step 5–pursue a complaint and hold a hearing in front of a state administrative law judge (ALJ). The ALJ can order your employer to pay damages or take certain actions. They can also dismiss your claim.
The “Right to Sue” Letter
If the OCRC investigator does not find probable cause that your claim is valid, the OCRC will issue you a Right to Sue Letter. Only then will you be permitted to file a sexual harassment lawsuit. The OCRC cannot issue a Right to Sue Letter until 60 days after you file your claim, however. That means that you will have to spend at least 60 days in the awkward position of working for an employer against whom you have filed a sexual harassment claim.
If you do not receive a Right to Sue Letter, you can request one from the OCRC. Once you do that, you may file a sexual harassment lawsuit in Ohio state court either as soon as you receive the Right to Sue Letter or 45 days after you request it, whichever comes first. This timetable is subject to the 60-day deadline, however.
Affirmative Defense: “Reasonable Care”
A number of potential defenses will be available to your employer–denial of your factual claims, expiration of the statute of limitations deadline, etc. One of the most likely defenses that might be raised, however, is the “reasonable care” defense. Under this defense, your employer can argue that:
- They exercised reasonable care to prevent sexual harassment in the workplace, or to immediately correct any sexual harassment that occurred; and
- You unreasonably failed to respond to any opportunities to prevent or correct sexual harassment, or to take any steps to avoid the harm that you are complaining of.
Your employer can prepare for a sexual harassment claim by initiating an appropriate sexual harassment policy.
Under Ohio sexual harassment law, it is much easier for you to sue your employer than it is for you to sue an individual who harassed you or permitted your harassment. A supervisor, for example, enjoys immunity from liability for sexual harassment unless they:
- Act outside the scope of their employment;
- Retaliate against you; or
- Try to prevent you from filing a claim.
Unfortunately, Ohio also applies limitations on the noneconomic damages (mental anguish, damage to your reputation, etc.) that can be assessed against your employer. Although you can receive the full value of back pay, etc. without limitation, your noneconomic damage cannot exceed the greater of:
- $250,000; or
- Three times your economic damages (up to a maximum of $350,000).
If more than one person complains of sexual harassment based on the same incident(s), the maximum combined economic damages available to you and any other complainant(s) cannot exceed a grand total of $500,000. Some would argue that these amounts are not enough to motivate a large company to change its practices.
Statute of Limitations for Sexual Harassment Claims
You have two years from the date of the last incident of sexual harassment that you allege to file a lawsuit. Try to think of the statute of limitations as a clock that begins ticking when the last incident of sexual harassment that you are complaining about occurs. The clock is stopped while your claim is in the hands of the OCRC, which means that you have more than two years in real time to file a lawsuit. If you miss the deadline, however, your claim will die.
The process of filing a sexual harassment claim can be a bit convoluted – more so when you consider the mental and emotional toll of the harassment itself while trying to seek justice. An experienced sexual harassment lawyer can help take some of this burden off of your shoulders. Contact us today to set up a free consultation to see how we can help you with your claim.