Under both federal law and Ohio law, sexual harassment is a form of discrimination. You are protected by the Ohio Fair Employment Practices Law if you work for an Ohio employer with four or more employees, and by Title VII of the Civil Rights Act of 1964 if your workplace has more than 15 employees.
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What is Sexual Harassment?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to, or rejection of, this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be of either gender. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, a supervisor in another area, or a co-worker.
- The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur even if there victim is not discharged or does not suffer economic injury.
- The harasser’s conduct must be unwelcome.
When investigating allegations of sexual harassment, the regulatory agencies look at the whole record including the nature of the sexual advances and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers should clearly communicate to employees that sexual harassment will not be tolerated and establish an effective complaint or grievance process.
Filing a Sexual Harassment Lawsuit in Ohio
Changes in procedural requirements to Ohio sexual harassment law in late 2020 erected additional barriers to filing a lawsuit. Now, a sexual harassment claim must go through the Ohio Civil Rights Commission (OCRC) before it can get into court.
Upon filing a sexual harassment complaint with the OCRC, the agency will notify your employer and investigate your claim. Since it is unlawful for your employer to retaliate against you for filing a sexual harassment claim, it is unlikely your employer will take action against you before your claim is resolved.
The OCRC will offer you and your employer mediation services in an attempt to resolve the claim. Either of you can refuse the offer, or you can attempt mediation. If you elect mediation but it is unsuccessful, the OCRC will hire an investigator.
If the investigator finds probable cause that your claim is valid, the Ohio Attorney General will pursue a complaint and hold a hearing before a state administrative law judge (ALJ). The ALJ can order your employer to pay damages or take certain other actions. The ALJ 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 in Ohio state court. 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 potentially 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.
Affirmative Defense: “Reasonable Care”
A number of potential defenses will be available to your employer, including denial of your factual claims and arguing that the statute of limitations has expired. 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.
The existence of a company-wide sexual harassment policy and training supervisors and employees in such a policy is helpful to an employer who is being sued for sexual harassment
Damages for Sexual Harassment in Ohio
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.
Economic damages that may be recovered are economic damages for loss of employment opportunity, lost wages, and other economic misfortune.
Ohio applies limitations on the noneconomic damages (mental anguish, damage to your reputation, etc.) that can be assessed against your employer. Your non-economic damages cannot exceed the greater of:
- Three times your economic damages, up to a maximum of $350,000
An expert tip from Doug Mann
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 total of $500,000.
Statute of Limitations for Sexual Harassment Claims
In Ohio, you have two years from the date of the last incident of sexual harassment to file a lawsuit. The clock is stopped while your claim is being reviewed at the OCRC.
The process of filing a sexual harassment claim often causes mental and emotional distress and can be compounded by the toll of the harassment itself.
Readers may also be interested in Ohio law on LGBTQ rights.