There are four different ways that you, an employee over the age of forty (or former employee), can pursue a claim for discrimination on the basis of age against an employer under Ohio law. You can file a charge of discrimination with the Ohio Civil Rights Commission (“OCRC”), or file a lawsuit under either Ohio Revised Code § 4112.02, §4112.99 or § 4112.14.
With other types of discrimination, for example disability discrimination, you can file a charge of disability discrimination with the OCRC, then later choose to file a lawsuit in state court. That is not the case, however, with an age claim. You get to pick one, and only one remedy (a.k.a. election of remedies). You can file a charge with the OCRC or file a lawsuit under one of the statutes. Once you pick one, you are prevented from asserting a claim under any of the other three!
To make matters more complicated, there is also the federal Age Discrimination in Employment Act (“ADEA”). To pursue a claim under the ADEA, you have to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) first, but if you do so, you will be precluded from filing suit under Ohio law. Unlike Ohio Revised Code § 4112.02 or § 4112.99, the ADEA does not allow you to receive compensatory (emotional pain and suffering) and punitive damages. Instead, remedies under the ADEA are limited to: unpaid compensation, court costs, and attorney’s fees. However, in cases involving a “willful” violation of the ADEA, the court may increase the award by an amount equal to your actual damages and order reinstatement. The ADEA applies only to employers that have 20 or more employee versus Ohio’s age discrimination laws which apply to employers that have 4 or more employees.
So, which one should you pick? It depends.
In some respects, Ohio Revised Code § 4112.02 or § 4112.99 provide more expansive remedies, including monetary damages. However, the lawsuit must be brought within 180 days of the discriminatory action.
If it has been more than 180 days, and you are claiming discrimination in hiring or discharge, you may want to file suit under Ohio Revised Code § 4112.14. Remedies are limited to reinstatement and back pay, but, if you prevail, the court must award you attorney’s fees and costs. Under this section, you have six years to bring suit.
If you file with the OCRC, your remedies are most limited. If you file with the OCRC your remedies are limited to reinstatement and back pay and you will be prohibited from later filing a lawsuit alleging age discrimination.
As with any case, facts and circumstances will vary. Because your time to file suit may be limited, if you believe you were discriminated against because of your age, you should contact an experienced employment discrimination attorney sooner rather than later.