Employment in the U.S. has been historically governed by the doctrine of at-will employment. This doctrine stands for the presumption that, in the absence of a contractual provision, employers and employees can terminate their relationship without legal liability at any time and for any reason. However, over the time, federal and state laws have restricted employers’ rights to terminate their employees for reasons deemed to violate public policy. Exceptions to employment at-will have been developed. Mainly, there are three categories: the contract/estoppel exception, the “abusive” discharge exception, and the public policy exception.
Certain contractual provisions modifying the at-will relationship can help avoid at-will employment. Such provisions are called disclaimer. They can be in the employment contract or even in the employment handbook or manual. They must be effective and employees must have relied on them.
“Abusive” discharge exception
Some jurisdictions have adopted good faith and fair dealing exception to the at-will employment, but Ohio has chosen not to do so. However, such claim might still be brought under the broad public policy exception.
Public policy exception
If the termination of an employee is against a public policy, then the employer cannot terminate such employee without an overriding business justification. Many public policies can be found in statutes, such as
- Reporting suspicions of child abuse
- Reporting insurance fraud
- Reporting a crime, aiding law enforcement officers, etc.
Others can be found in common law, such as
- Providing truthful testimony
- Reporting threats of co-worker
- Reporting boss’s potential drunk driving
- Consulting an attorney/filing action
- Ensuring workplace safety, etc.
Basic EEO (Equal Employment Opportunity) Practice
Federal and state laws prohibit employment discrimination. Title VII, a major law in this area, makes it unlawful for an employer to hire/refuse to hire/discharge an employee on the basis of her race, color, religion, sex, or national origin. Amendments of Title VII, such as Pregnancy Discrimination Act (PDA), Family Responsibility Discrimination (FRD) further restrict an employer’s ability to hire/fire under the certain circumstances. Other major laws in this area include
- Equal Pay Act (EPA)
- 42 U.S.C. §1981
- Age Discrimination in Employment Act (ADEA)
States have also passed similar laws. For example, Ohio law prohibits employment discrimination on the basis of race, color, religion, sex, national origin, handicap, age, or ancestry of any person. It is broader than the federal law.
Title VII also created a federal agency, the Equal Employment Opportunity Commission (EEOC), to enforce the law. States also have their administrative agencies to enforce their laws. In Ohio, the Ohio Civil Rights Commission (OCRC) is responsible for the enforcement of Ohio laws prohibiting discrimination in employment, housing, public accommodation, credit, and higher education.
Qualified States may enter into a work-sharing agreement with the EEOC to avoid duplication of time and effort. Such is the case in Ohio. For the EEOC/OCRC to investigate a charge of employment discrimination, an employer-employee relationship must exist, and the charging party must have suffered damage as a result of the discrimination. The size of the employer matters and time is also critical. For example, Title VII requires that a charge be filed with the EEOC within 180 days after the discrimination occurred. Ohio extends the filing period to 300 days.
Practicing before the EEOC/OCRC
Who may file a charge?
Any person claiming to have suffered harm as a result of a discriminatory act may file a charge. Charges can be filed by the EEOC or OCRC on their own initiative.
The charge affidavit
The charge affidavit must be in writing and signed by the charging party under oath. Certain information must be included.
After the charge is filed, the parties have an option to participate in mediation, a confidential process by which the charge can be resolved with the help of a mediator. There are many advantages to mediation, such as tolling time, reevaluating charges, and saving money.
If mediation is unsuccessful, the investigation will commence. Typically, an investigator is assigned to the case and makes recommendations to the commission.
The position statement
The employer normally has 14 days to respond to the charge by sending a “position statement,” telling employer’s side of story.
Conclusion of Investigation
At the conclusion, the OCRC investigator will make recommendations to the commission. Possible recommendations include
- Charging party failed to cooperate
- Withdrawal of charge
- No probable cause to believe an unlawful act took place
- Probable cause to believe an unlawful act took place, etc.
After the conclusion, either party can request the OCRC to reconsider the finding. The EEOC will issue a notice of the right to sue, but the OCRC does not issue such letters because charging parties have the right to file their claims in court anyway.
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