Best Ohio Employment Discrimination Lawyer Answer: Can I sue a co-worker for discriminating against me based on my race, religion, or gender? Can I sue a customer for sexually harassing me? Will my co-worker be personally liable to me for discrimination?
Our employment discrimination attorneys have blogged before about your right to sue your boss directly for discrimination under Ohio law. Likewise, our employment law lawyers have discussed what your employer has to do about discriminating or harassing customers. (See Race Discrimination: Customers Are Not Always Right; Retaliation: Now That’s A Lot Of Waffles! | The Spitz Law Firm; The Customer Isn’t Always Right | The Spitz Law Firm). This blog deals with a different topic: can you sue a co-worker, or anyone other than your employer and your boss for discrimination?
First, the bad news. There are no such claims allowed under the federal Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA“), or Age Discrimination in Employment Act (“ADEA“).
With that said, under Ohio law, the answer is yes, but not directly. Ohio law does not allow a direct claim for discrimination against a non-employer (which, under Ohio law, includes supervisors, managers and bosses). However, there are other parts of Ohio law that apply more broadly to “any person,” and not just “Employers.”
First up is Ohio’s anti-retaliation statute, which is extremely broad. Under Ohio R.C. §4112.02(I), it is unlawful for “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.” Critically, one does not need to be an employer or acting on behalf of an employer to be liable for retaliation, and there is no requirement that an employment relationship exist at the time the retaliatory conduct occurs. Likewise, the retaliatory act can be any adverse action, and it does not need to happen on the job. So, under Ohio’s retaliation statute, anybody – a co-worker, customer, your boss, a subsequent employer, your new boss – can be liable if they retaliate against you for opposing discrimination.
So, let’s look at this scenario: You complain about national origin or disability discrimination on one job, but leave to take another job. After working at the new job for three months, your new boss talks to you old boss’s wife at a cocktail party. The wife goes off about how you filed employment discrimination claims and were a lousy person. The new boss calls you into his office the next day and wrongfully fires you because she doesn’t want that kind of problems here. Under Ohio R.C. §4112.02(I), you would have an employment retaliation claim against both the old boss’s wife and your new boss.
Equally broad is Ohio’s aiding and abetting statute, R.C. §4112.02(J), which states that it is unlawful “for any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter or any order issued under it, or to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice.” In Sampson v. Sisters of Mercy of Willard, Ohio, Judge Jeffrey Helmick of the United States District Court for the Northern District of Ohio construed R.C.§ 4112.02(J) rather narrowly, to apply to claims in which the defendant “assisted” or “encouraged” discriminatory conduct:
As the parties note, Ohio courts have offered little guidance on § 4112.02(J) claims. Another federal court in this district, in analyzing an aiding-and-abetting claim, noted Ohio courts “generally define ‘aid’ as ‘to assist’ and ‘abet’ as ‘to incite or encourage’ “ while also construing “aiding and abetting as an intentional act….” Luke v. City of Cleveland, at *8 (N.D.Ohio Aug. 22, 2005) (quoting Horstman v. Farris, 132 Ohio App.3d 514, 725 N.E.2d 698, 707 (Ohio Ct.App.1999) and State v. Stepp, 117 Ohio App.3d 561, 690 N.E.2d 1342, 1347 (Ohio Ct.App.1997)). “[I]n order to aid or abet, whether by words, acts, encouragement, support[,] or presence, there must be something more than a failure to object unless one is under a legal duty to object.” Horstman, 725 N.E.2d at 707 (quoting Stepp, 690 N.E.2d at 1347).
However, the plain language of R.C. § 4112.02(J) suggests that it is much broader in scope than just assisting another in discriminating. Notice the last sentence: “or to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice.” To me, this language appears to create direct liability for anyone who discriminates or harasses another in violation of R.C. §4112.02(A). So, through R.C. § 4112.02(J), you should be able to sue anyone who discriminates against you at work. This is a critical part of reducing discrimination, as persons who know they may be personally liable for discrimination are less likely to discriminate.
As we have recently blogged, the right of Ohio employees to hold their boss or co-worker liable for discrimination and sex harassment is sadly under attack by pro-business, anti-worker legislators in the Ohio Senate, who recently introduced State Bill 383. Aside from making it easier to discriminate and sexually harass in Ohio, the proposed law also creates ridiculous results. Under proposed changes to R.C. §4112.08(A), you could sue a third party, such as a customer or vendor for aiding and abetting, but not a co-worker:
However, no person has a cause of action or claim based on unlawful discriminatory practices relating to employment against a supervisor, manager, or other employee of an employer unless that supervisor, manager, or other employee is the employer. Nothing in this division abrogates statutory claims outside this chapter or any claims of liability that exist against an individual at common law.
This language would essentially render the “any person” language contained in (I) and (J) entirely superfluous, as the only persons such claims could be brought against would be “Employers” and third parties who were never employees.
Rest assured as the laws change, our employment discrimination lawyers will be following it and keeping you informed.
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