Workplace Grooming and Appearance Policies and Enforcement

I receive many calls from employees stating that they are being discriminated against because of dress, appearance, and grooming. They were sent home, instructed to cover tattoos and piercings, fired, not promoted and being treated unfairly. They want to sue their employer. Guess what? You are usually going to lose the case and should most likely never even bring a case unless religious or disability discrimination has occurred. So here is another blog on workplace grooming and appearance (see my Feb. 22, 2010 blog “Body Art and Tattoos at Work”).

Generally speaking an employer does not violate your civil rights or cause employment discrimination for enforcing workplace grooming and appearance policies. Sometimes the policies are titled: “Grooming and Personal Appearance Policy”, “Professional Appearance Policy”, etc. Sometimes there is not a written policy but the company enforces a professional appearance standard.

What is a professional appearance standard?  A dress and appearance policy based on business needs that is applied uniformly. Any appearance policy should be based on justifiable business reasons that do not have a disproportionate effect on particular segments of the workforce. The employer must ensure that such policies are applied consistently and fairly without regard to an applicant's or employee's race, sex, national origin, religion, color, disability, age, or any other protected status. Employers are legally free to deny that new corner office to employees because they have bad breath or dress as though they just came from the beach. Employers actually can discriminate, because discrimination based on such characteristics does not violate Title VII.

Depending on the business an employer can fire you, request you to cover up, refuse to promote, send you home for piercings, bad breath, visible tattoos, wrinkled clothes, messy hair, hair color, casual dress, too much perfume or cologne, too much makeup, messy office or cubicle, chewed fingernails, too suntanned and many more grooming or appearance issues.

Again the employer must ensure that such policies are applied consistently and fairly without regard to an applicant's or employee's race, sex, national origin, religion, color, disability, age, or any other protected status.

Male vs Female dress code policies. The courts do not require that both sexes must follow the exact same rules. Instead, they hold only that both sexes, when in similar situations, should be held to the same general standard.  An employer could say that all office employees with customer contact must present a well-groomed, professional appearance. The standard is uniform but the actual rules may accommodate sex-based differences, such as different hair lengths. Dress requirements that reflect current “social norms” typically have been upheld, even when they affect only one sex. Employers do not have to apply identical dress or grooming standards to men and women when the differences are justified by social norms.

 

Religious discrimination and disability discrimination are two widely areas that employers can violate an employee’s civil rights or discriminate. For instance; some religions require men to wear beards, some require women to cover their heads, and some disabilities make it very difficult for a man to shave or to their clothing could be a wrinkled. An employer must be careful not to discriminate because of these reasons. Reasonable accommodations can be made. However, if an employer can show that the accommodation would be an undue hardship, such as if the employee’s dress created a safety concern, it probably does not have to allow the exception to its policy. Even if a religious belief regarding body art is assumed, most courts have agreed that the duty to accommodate religious dress issues is fairly limited and often will uphold an employer’s dress code when based on clearly expressed business interests. 

Many employees mistakenly believe that they have a right to show tattoos and body piercings at work. While tattoos and piercings may be examples of employee self-expression, they generally are not recognized as indications of religious or racial expression and, therefore, are not protected under federal discrimination laws. An employer can require that tattoos and piercings not be visible, and they can even prohibit employees from having them at all. Generally an employer will ask you to cover them up.

Sex discrimination claims are usually not successful unless the dress policy has no basis in social customs, differentiates significantly between men and women, or imposes a greater burden on women.  Thus, a policy that requires female managers to wear uniforms while male managers are allowed to wear "professional dress" may be discriminatory.  However, dress requirements that reflect current social norms generally are upheld, even when they affect only one sex. Policies prohibiting male employees from wearing earrings, but allowing women to wear them, generally have been upheld by the Courts. Minor differences in personal appearance codes that reflect customary modes of grooming do not constitute sex discrimination.  Therefore, the employer’s request that a male employee not wear earrings, when female employees were allowed to so, did not violate Title VII. Men generally have not been successful in claiming discrimination when policies restrict long hair for men only. Most Courts have held that “male only standards” such as male hair length is not sex discrimination. Dress codes that have no basis in social customs, that differentiate significantly between men and women, or that impose a greater burden on women usually are not upheld. 

Race discrimination claims can be difficult to prove employees must show that the employer’s dress code has a disparate impact on a protected class of employees.  Race claims have been successful in challenges to no beard policies. Some courts have determined that a policy that requires all male employees to be clean-shaven may discriminate if it does not accommodate individuals with pseudofolliculitis barbae (PFB), a skin condition aggravated by shaving that occurs almost exclusively among African-American males. No beard rules also may violate disability discrimination laws. Some have ruled that pseudofolliculitis barbae is a disabling condition and requires reasonable accommodation under state and federal disability laws and the federal Rehabilitation Act.

Dress code policies could violate the National Labor Relations Act (NLRA). Several courts have determined that employees have the right to wear union buttons and pins to work, unless the wearing of these items creates a safety hazard or, in the case of workers with public contact, the employees consistently are required to wear uniforms without buttons and pins.

Protection in Filing a Complaint To Your Employer Under Title VII, ADA & ADEA

Protection in Filing a Complaint To Your Employer Under Title VII, ADA & ADEA

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. Under the retaliation provisions of Title VI and similar to the ADA & ADEA, employers cannot retaliate against an employee because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or because the employee has opposed any employment practice that is unlawful under the Act.

The United States Supreme Court has already held that, the word “oppose” means to resist or antagonize; to contend against; to confront; resist; withstand. So, applying that definition to the opposition clause of the Act, what does it mean to "oppose" an unlawful employment practice in a Title VII retaliation claim?

 
Complaints do not have to be written to count (however, I recommend every complaint be written and a copy kept), an employee must reasonably believe the activity they are complaining about is unlawful under Title VII, ADA & ADEA. Eventually, if the activity complained about is not unlawful the employee is still protected if they reasonably believed it was unlawful. The complaint cannot be simple everyday stuff such as: co-workers disagreements, a boss telling you that you are not following policy and procedures, weak vague complaints about general office issues. The complaint must be accurate, to the point, not what everyone else is doing, specific to the unlawful activity/problem that the employer is doing.
 
If a written complaint to the supervisor brings no action, look at your Employee Manual, Policy/Procedure manual for the next step to follow.  If you do not have manuals or policies against discrimination and retaliation, send a certified letter to the HR Dept. Director or the CEO/Owner of the company (always keep copies). In small businesses many times the owner is the supervisor, HR dept., CEO, and only person to complain to, if this is the case and you have filed a formal written complaint with this person and nothing was done or if this person is the one discriminating or retaliating; then your only alternative is to consult with an employment lawyer or file a complaint with the Equal Employment Opportunity Commission or Ohio Civil Rights Commission.
 
You should always give the company the opportunity and chance to correct the activity/problem in a reasonable time. The company should keep you inform of what process is being followed and you should let the company know if the activity/problem is continuing. 

EEOC Q&A For Employees Who Experience Domestic

or Dating Violence, Sexual Assault or Stalking

 The U.S. Equal Employment Opportunity Commission has just released a new Question and Answers on potential employment discrimination and retaliation against applicants or employees who experience domestic or dating violence, sexual assault, or stalking. http://www1.eeoc.gov//eeoc/publications/qa_domestic_violence.cfm?renderforprint=1

Federal EEOC Law does not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking. However, this type of problem could fall under Title VII of the Civil Rights Act of 1964 (Title VII) and/or the Americans with Disabilities Act (ADA).  Here are a few of the possibilities:

Disparate Treatment: based on sex, which may include treatment based on sex-based stereotypes.

·        An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”

·        A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.

·        An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”

Title VII Retaliation: Title VII prohibits retaliation for protected activity. Protected activity can include actions such as filing a charge of discrimination, complaining to one’s employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. For example:

·        An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

ADA: The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example:

·        An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

·        An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

Reasonable Accommodation Request: The ADA may require employers to provide reasonable accommodation requested for an actual disability or a “record of” a disability. an actual disability is a physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions). a “record of” a disability is a past history of a substantially limiting impairment. an impairment does not need to result in a high degree of functional limitation in order to be “substantially limiting.” A reasonable accommodation is a change in the workplace or in the way things are usually done that an individual needs because of a disability and may include time off for treatment, modified work schedules, and reassignment to a vacant position. For example:

·        An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”

·        In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.

Medical Information: The ADA prohibits disclosure of confidential medical information.

·        An employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest requests reasonable accommodation. Her supervisor then tells the employee’s co-workers about her medical condition.

ADA Retaliation: The ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute.

·        In the prior example, the employee tells the supervisor she intends to complain to human resources about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

Keep in mind the above examples are only a few ways that Title VII and ADA can be violated by employers. There are numerous more.

This information comes from the EEOC website “Questions and Answers: The application of Title VII and the ADA to Applicants or Employees Who experience Domestic or Dating Violence, Sexual Assault, or Stalking.  http://www1.eeoc.gov//eeoc/publications/qa_domestic_violence.cfm?renderforprint=1

 

 

Hospital Receptionist Harassed By Patient EEOC Sues

 

All employers should be aware of and sensitive to workplace harassment including hospitals. All employees should be aware that they have rights to work in a harassment free environment. The law protects employees from third party persons who are not employees such as: patients, doctors, sales people, clients, and customers). In the typical healthcare setting there are many non-employee people present everyday, therefore problems have the potential to arise almost everyday and do.

 

About the lawsuit: EEOC v Southwest Virginia Community Health System. The U.S. Equal Employment Opportunity Commission (EEOC) charged the hospital with violating federal law in which a female employee (receptionist) was sexually harassed by a male patient from April to December 2009 and from June to September of 2010.

 

The receptionist and EEOC allege that the patient harassed her through unwelcome sexual comments including "run away with me", "he was visualizing her naked" and "suggested she have sex with him". The allegations include that the patient harassed the receptionist by phone and in person.

 

What should you do if you find yourself in this position:

1. Firmly tell the harasser that this behavior is unacceptable and they are to stop it immediately.
2. Review your employee handbook/policy & procedure manual for the companies policy on how to proceed with harassment in the workplace and follow that procedure (always in writing).
3. Report the harassment to your immediate supervisor "IN WRITING"
4. If the harassment does not stop send a certified letter to your "HR Dept." explaining the harassment and your reporting this harassment to your supervisor, include a copy of the letter. (Always retain copies any letter you send).
5. As last resort send a certified letter to the "CEO/President/Owner" or "Chairman of the Board of Directors".  This step doesn't really have to be done but no one can ever say you didn't try to follow all internal administration policies before going to an outside agency such as EEOC or Ohio Civil Rights Commission (OCRC).
6. If no satisfaction is reached through all the above steps either consult an employment lawyer or file a complaint with the EEOC or OCRC.

How long do you have to wait between steps?  There is no law or rule. You could do steps 1-5 altogether at once. The purpose is to give the company, hospital, business, etc. time and a chance to correct the problem internally.

What should the company do if they receive notice of an employee being harassed:

1. Employer should have an anti-harassment policy.
2. Employers should routinely update their anti-harassment policy.
3. An employer should be very sensitive to all forms of harassment and react responsibly and quickly to all notices of harassment from an employee.
4. When the hospital, company or business is put on notice by an employee of such harassment or conduct the employer is then responsible to "INVESTIGATE", "TAKE PROMPT ACTION TO STOP THE HARASSMENT OR CONDUCT" even if the person doing the harassment is not an employee.
5. Employers should make all supervisors fully aware that harassment by patients or by non-employees is just as dangerous and serious as by employees.
6. All non-supervisory employees should be routinely made aware of the anti-harassment policy of the hospital, company or business.

Older Worker Benefit Protection Act (OWBPA)

Severance agreements: departing employees 40 years of age and older receive special legal protections when it comes to severance agreements under the Older Worker Benefit Protection Act (OWBPA). The severance document must contain certain language advising the employee of their rights under federal law, and must advise them to take the document to a lawyer to have it reviewed.

The OWBPA requires a mandatory waiting period of at least seven days between the time you originally enter into the agreement and the time when the agreement can be countersigned and the severance paid. This cooling-off period could be used for the employee to go to a lawyer, who might advise them of their opportunity to file a legal claim or threaten a lawsuit instead. The OWBPA also ensures that no employee is coerced or pressured into signing legal waivers of rights under the Age Discrimination in Employment Act (ADEA).

Under the OWBPA, employees eligible for early retirement incentive plans must be provided with complete and accurate information concerning what benefits are available under the plan. If certain conditions of the OWBPA are met, employees may legally sign waivers of their ADEA rights to sue for age discrimination.

There are nine main conditions an employer must provide to employee's in their retirement waiver to comply with the OWBPA:

1. In return for signing the waiver, the employee must be given something more than what he/she is already entitled to by right. If an employer provides a severance package to all employees as a matter of right, then older employees must be given something of value in excess of the severance pay in exchange for their waiver of ADEA rights.
2. The waiver must be part of an agreement between the employer and the employee and must be written in clear and unambiguous language, absent of any jargon or legalese, and “calculated to be understood” by the employee.
3. Prior to the execution of any waiver in connection with an incentive or other employee retirement termination program offered to a group of employees, the employees must be informed in writing about the class, unit, or group covered by the program, any eligibility factors for the program, and any applicable time limits.
4. The employer also must make clear to employees the job titles and ages of all individuals eligible for the program, and the ages of all individuals in the same job classification, or organizational unit who are not eligible or selected for the program.
5. The waiver must specifically refer to rights or claims arising under the ADEA (discrimination because of age in employment or employment benefits).
6. After signing the agreement, the employee has seven days to revoke it, and the agreement is not effective until the end of the seven days.
7. The employee must be advised in writing to consult with a lawyer before signing the agreement.
8. The employer must provide employees with sufficient time to consider the waiver. Before signing the agreement, an employee negotiating a waiver must be given 21 days to consider the matter. If the employee is part of a group of employees being offered an early retirement incentive program or other employment termination program, he/she must be provided 45 days to consider the matter before signing the agreement.
9. An employee may not waive rights or claims which may arise after the date the waiver is executed.

If a waiver becomes invalid, must an employee return the money he originally received in exchange for signing it before he can challenge it in court?  The U.S. Supreme Court in 1998 made a ruling that employers must draft valid waivers. They ruled that if a signed waiver is later found invalid, the employee: 1) can file a discrimination lawsuit; and 2) does not have to give back the money he already received in exchange for signing the waiver. Oubre v. Entergy Operations, 522 U.S. 422.

What does the court consider in determining the validity of a waiver? Courts consider the totality of circumstances based on some of the following but they can look at other factors too: the employee's education and business experience; respective roles of the employer and the employee in deciding the provisions of the waiver; clarity of the agreement; amount of time in which the employee had to study the agreement; whether the employee  was able to consult with legal counsel; and the consideration the employee received for signing the waiver, such as severance.

Age discrimination claims are common when there is a reduction in workforce, particularly of long time employees. The OWBPA also established specific requirements for a "knowing and voluntary" waiver of ADEA claims.

Age Discrimination in Employment Act (ADEA)

The ADEA is federal law regarding age discrimination in the workplace. Many states also have laws prohibiting private persons, organizations and governments from discriminating against people because of age. Under the ADEA and most State laws workers over the age of 40 are protected.


What are some of the ways an employer can discriminate in the workplace? Through job advertisements and recruitment; hiring; firing; pay; compensation; benefits both regular and fringe; apprenticeship programs; serverance packages where they require you to waive your right to sue; and possibly through age preference or age limitations in job notices or advertisements; harassment due to your age; not providing equal benefits; and retaliation after filing a claim or participating in an investigation of age discrimination.


Who investigates age discrimination claims? In Ohio, it can be the EEOC (Equal Employment Opportunity Commission) or the (OCRC) Ohio Civil Rights Commission. An employee who believes they have been discriminated against must file a claim with the EEOC or OCRC within 180 days after the age discriminatroy act occurred. If you don't file within the 180 days, you lose? The investigators have one year to investigate your claims. After 90 days of investigation time you can request a "Right To Sue" letter from the EEOC, hire a private attorney and pursue your age discrimination case in a Court of Common Pleas in the county where the discrimination occurred.


Under Ohio law, a case of age discrimination may be proved either directly or indirectly. An employee "may establish a case of age discrimination directly by presenting evidence, of any nature, to show that an employer more likely than not was motivated by discriminatory intent. If, however, the employee is unable to establish a causal link or nexus between the employer's discriminatory statements or conduct and the act that allegedly violated the employee's rights under the statute, then the employee has not proved age discrimination by the direct method of proof. Without direct proof of discrimination, an employee may establish a claim of age discrimination indirectly by demonstrating he or she (1) was a member of the statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age.  If a plaintiff establishes a case of age discrimination, the burden shifts to the employer to provide some legitimate, nondiscriminatory reason for the action taken. If the employer establishes a nondiscriminatory reason, the employee then bears the burden of showing the employer's proffered reason was a pretext for impermissible discrimination. The employee must demonstrate the employer's nondiscriminatory reason was pretextual (a false or weak reason or motive said to hide the actual reason or motive). While age-related comments directed toward the employee may support an inference of age discrimination, isolated, ambiguous, or abstract comments cannot support a finding of age discrimination.


Hostile work environment under the ADEA. The criteria for a claim of hostile work environment under the ADEA is  the emplyee has to be 40 years of age or older; the employee was subjected to harassment either through words or actions based on age; the harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile, or offensive work environment and there exists some basis for liability on the part of the employer. We must keep in mind that a discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Further, whether harassment is sufficiently severe or pervasive to create an abusive work environment is quintessentially a question of fact. A court must consider all of the relevant circumstances in order to determine whether an environment is hostile or abusive. These circumstances “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a merely offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.


If I win what damages can I get?  Compensatory damages such as: back pay for any income you have loss, attorney fees, emotional distress, force employer to re-hire you, lost future wages. Punitive damages which serve to punish an employer for their bad behavior.


Always talk to an attorney before filing a claim with EEOC or OCRC. Always talk to an attorney before you sign a waiver of your rights to sue or a severance package.

Planning for Divorce: Documents You Need and Other Considerations

1. Becoming a financial victim by not planning for your divorce.
2. Have copies of your marriage certificate, state/county/city/date of marriage.
3. Common mistake is relying more on the advice of family and friends than on your lawyer.
4. Common mistake is withholding information from your lawyer because you’re afraid of things you said or did will get you into trouble.
5. Common mistake is letting your emotions control your decisions, keep your emotions under control, use your head not your heart.
6. Not knowing your assets and their worth.  Real estate, cars, trucks, boats, jet-skis, household furniture, furnishings, bank accounts, investments, stocks, stock options, bonds, other securities, 401k, pensions, IRA’s, life insurance, annuities, oil and gas interests, royalties, antiques, guns, coins, jewelry, fine art, property owned prior to marriage, accounts receivable, investment property, rental properties, vacation homes.
7. Bringing an emotional attachment to assets.
8. Failure to Consider the Impact of Taxes.
9. Not Understanding the Rules of Retirement Accounts.
10. Overlooking Debt and Credit Rating Issues. Credit cards, debit cards, notes payable, loans, medical bills, utilities.
11. Get a copy of your credit ratings from all three companies.
12. Not Maintaining Control Over Insurance Policies
13. Failure to Accurately Budget
14. Failure to Identify Hidden Assets
15. Failing to include college costs for the children and impact of inflation

16. Failing to take into consideration Social Security Benefits
17. Failing to adequately insure the divorce settlement. If premature death or disability occurs this could affect spousal support, child support, college tuition of property settlement.
18. After divorce failing to change will and beneficiaries
19. Counting on your ex to honor financial commitments.
20. Failing to make a clean financial break.
21. Hanging onto the house at all costs.
22. Consider changing your name to maiden name.
23. Prepare for health coverage after the divorce.
24. If domestic violence has occurred: consider name change of children and social security numbers changed for children and wife/husband victim.
25. Vital documents you should have for the divorce.  Prenuptial agreement, Deeds, mortgages, closing statements, tax records/returns (5 years), real estate appraisals, pay stubs both spouses, bank statements, canceled checks, deposit slips (at least 5 years bank records), monthly expenses, home improvements, records of all sources of income, judgments against either spouse, judgments held by either spouse, records of previous child support payments, charge card statements 3 years, all promissory notes, car loan documents, dividend and interest statements, safe deposit box list of all contents make copies, documentation of any inheritance, loan applications (car, personal loan, any other), savings account statements, statements of certificates of deposits, IRA statements, trust documents, other documents sowing savings, life insurance policies, property and liability insurance policies, disability insurance policies, family hospitalization plan/insurance coverage, living wills, durable power of attorney for health care, durable power of attorney financial, advance health care directives, appointment diaries, U.S. Passports, copies of power of attorney, claims made for auto accidents/accidents at work, workers compensation claims, unemployment claims, claims against others for damage, resume of both parties, Keogh plan documents, 401K documents, pension plan records, business tax returns 5 years, business bank statements, canceled checks and deposit slips, business loan documents, business appointment diaries, advertising brochures and material given to prospective customers, partnership agreements and other business agreements, buy/sell agreements, business credit card records, corporate documents including by-laws, operating agreements, articles of incorporation, records filed with secretary of state, documents filed with SEC,  business cards, office/building leases, records showing business accounts receivable and accounts payable, business appraisals, business deeds, mortgage notes, profit sharing through employment documents, employment contracts.

Are Employment Cases Torts Under Ohio Law

Currently there is a split in Ohio Appellate Courts as to whether employment actions, such as age discrimination, ADA disability, gender, race, religious, GINA, sexual harrassment, national origin, retaliation and any other Title VII discrimination should be classified as "tort actions" in Ohio.

You may ask: What is a Tort Action?  A tort is a civil wrong committed by one person against another. There are three board cateogories of torts; intentional torts (battery, assault, false imprisonment,  intentional infliction of emotional distress, etc.); negligence; and strict liability.

Why does it matter? Well it matters if punitive damages are to be awarded in an employment discrimination suit.  In general there are two types of damages that are awarded in employment discrimination suits, compensatory damages and punitive damages.

If an employment discrimination suit is considered a tort action, then in Ohio, punitive damages have a tort cap and are limited to two (2) times compensatory damages.  If the employment suit is not a tort then there is no cap on punitive damages. Example: compensatory damages $3.5 million and punitive damages $43 million. In the example punitive damages would be 12 times compensatory damages.  In general punitive damages are usually in single digits (1-9) times compensatory damages but there is no limit if not a tort action.

Another affect on employment cases, if they are tort actions, is the tax liability the client's award would have.  If a tort then the award of damages is a personal injury to the client and as far as I know personal injury awards are not taxable to the client.  However, I am not a tax attorney and would like to have any CPA or tax attorney respond to this question.

A recent case October 2011, Luri v. Republic Services, Inc., 2011 Ohio 2389, 953 N.E.2d 859, Eighth Appellate District, Cuyahoga County decided this issue for the Eighth District.  Luri was a retaliation case.  The jury awarded $3.5 million in compensatory damages and $43 million in punitive damages for the largest retaliatory discharge verdict in Ohio history. However, the Eighth Appellate District held that the Ohio Tort Reform Act would apply to employment cases and therefore limited punitive damages to two (2) times the compensatory damages reducing the punitive damages to $7 million dollars from $43 million. (2 x $3.5 million compensatory = $7 million punitive).

I guess we will have to wait on the Supreme Court of Ohio to rule since there is a split in several of the appellate district courts.