Retaliation claims serve as an important tool to employees seeking to redress wrongs in the workplace. This guides describes how plaintiffs can prove retaliation, and what makes Ohio's anti-retaliation law a little weird.
Ohio's Anti-Retaliation Law
Ohio's Revised Code 4112.02(I) prohibits employers from retaliating against their employees for engaging in what is called "protected activity." Specifically, R.C. 4112.02(I) states: "it is an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code."
Proving Retaliation in Court
A plaintiff who hopes to prove retaliation will have to satisfy four factual showings. First, she engaged in a protected activity (e.g., filing a complaint of discrimination); second, the defending party was aware that the plaintiff had engaged in that activity; third, the defending party took an adverse employment action against the employee; and finally, there is a causal connection between the protected activity and adverse action.
Like discrimination claims, Ohio courts apply the McDonnell Douglas framework to plaintiff retaliation claims. If a plaintiff establishes a prima facie case, the burden then shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the employer satisfies this burden, the burden shifts back to the plaintiff to demonstrate that the offered reason is not the true reason for the employment decision.
The Weird Parts
There are many aspects of Ohio's anti-retaliation statute, however, that make it different in some key ways from its federal counterpart that plaintiffs and defendants should be aware. Unlike the federal anti-discrimination statutes that typically require complaints be filed with a federal agency between 180 to 300 days after the adverse employment action, Ohio plaintiffs bringing retaliation claims have up to six years to file. Furthermore, plaintiffs in Ohio do not have to exhaust their administrative remedies before filing a claim in state court. The most bizarre feature of Ohio's anti-retaliation law is the fact that anyone can be sued under it who has retaliated against an employee--- including supervisors, fellow employees, or maybe even subordinates of the victim who assisted a supervisor in his retaliation.
Knowing these differences between the federal and Ohio anti-retaliation laws is important for plaintiffs' counsel to know to bring the best lawsuit possible, and for defense counsel to know to best advise their clients as to the true extent of their potential liability
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