Ohio just passed a new law that could begin a trend favorable to employers. The new law allows Ohio’s Civil Rights Commission, in its discretion, to award attorneys’ fees and costs to employers who are found not to have unlawfully discriminated against an employee. Why is this important?

  • Most employers know that in employment discrimination cases, if the suing employee wins the case, the employer is ordered to pay the attorneys’ fees and costs of the prevailing employee.
  • This part of an employee’s recovery – called the fee-shifting provision – can be the source of significant liability for an employer.
  • It also is a source of significant frustration for employers, because, as the law currently stands, if the employer wins the case, there is not a similar “fee-shifting” provision in favor of the employer. Rather, for the employer to obtain recovery of fees and costs, the employer must prove that the employee’s claim was frivolous or brought in bad faith.
  • This new Ohio law does not go as far as some employers would like, I am sure. The new law applies only to the State Commission, and not to the courts. And, the fee-shifting is not automatic. Yet, the fee-shifting does lower the burden on employers to win fees and costs. The employer is not required to prove that the employee’s claim was frivolous or brought in bad faith. The employer need only prevail.

Historically, the fee-shifting provision in discrimination cases was designed to encourage lawyers to take part in advancing the civil rights movement. There was a sense, in the early years of that movement, that financial incentive would be needed to encourage lawyers to take on what some perceived as socially and politically unpopular causes, especially in some parts of the nation’s community.

Today, one could argue that such incentive is no longer needed, that the social and political stigma to filing such cases no longer applies. Employment cases continue to be a large part of lawsuits filed every year. Could it be the built-in incentive now goes too far and encourages cases that should not be brought?

One also could argue that the many new laws expanding employee rights and courts’ expansive reading of discrimination laws add to employers’ perception of ever-increasing costs to hiring employees. The concern is that this perception – real or imagined – chills hiring.

Could this new Ohio law harken a “fresh” look at these fee-shifting provisions? Might this fresh look cause some legislative bodies to create a more balanced approach to fee-shifting and allow some recovery for employers who are found not to have unlawfully discriminated? Time will tell, and it certainly could spark interesting public policy debate.