Is Discrimination just Another Tort?: A Discussion of Ohio's Attempt to Tortify Employment Discrimination

• Author: Katharine R. Markijohn
• Position: Capital University Law School, Juris Doctor candidate 2018; Ohio University, B.A. in English with a focus in pre-law, Phi Alpha Delta Secretary, May 2015. This Comment would not have been possible, nor would this issue have even been brought to life, without the help of my father, Darrell Markijohn. His work and research on this issue inspired...
• Pages: 313-338

IS DISCRIMINATION JUST ANOTHER TORT?: A

DISCUSSION OF OHIO’S ATTEMPT TO TORTIFY

EMPLOYMENT DISCRIMINATION

KATHARINE R. MARKIJOHN*

I. INTRODUCTION

The Supreme Court of Ohio has never addressed whether statutory

damage caps on noneconomic and punitive damages apply to

discrimination claims made under Ohio’s discrimination statute, Ohio

Revised Code Chapter 4112. The 2011 decision in Luri v. Republic

Services, Inc. by the Eighth District Court of Appeals for Cuyahoga

County is the only case to address whether these damage caps apply to a

discrimination case under Chapter 4112.1This Comment contends that the

court’s decision in Luri was wrongfully decided. The court in Luri

determined that punitive damage caps passed as part of the Ohio Tort

Reform Act (now set out in Ohio Revised Code § 2315.21(D)(2)(a)) apply

to Chapter 4112 statutory discrimination claims, thus limiting the

plaintiff’s punitive damage award to twice the amount of compensatory

damages.2The court concluded that the damage caps in

§ 2315.21(D)(2)(a) applied to a statutory discrimination claim under

Chapter 4112 but provided little rationale for its decision.3By applying the

damage caps from § 2315.21, the Luri court implicitly ruled that a Chapter

4112 discrimination claim is a “tort action” under the Ohio Tort Reform

Act. What the Luri court failed to acknowledge is that a Chapter 4112

discrimination claim is not a tort action under the Ohio Tort Reform Act,

and the damage caps set out in §§ 2315.21 and 2315.18 do not apply.

Copyright © 2018, Katharine R. Markijohn.

*Capital University Law School, Juris Doctor candidate 2018; Ohio University, B.A. in

English with a focus in pre-law, Phi Alpha Delta Secretary, May 2015. This Comment

would not have been possible, nor would this issue have even been brought to life, without

the help of my father, Darrell Markijohn. His work and research on this issue inspired me

to write this Comment and sparked my interest in labor and employment law. Further, this

Comment would not be sensible without the help and guidance of Professor Susan Gilles of

Capital University Law School. Thank you.

1953 N.E.2d 859, 864 (Ohio Ct. App. 2011).

2Id. at 867.

3Id.

314 CAPITAL UNIVERSITY LAW REVIEW [46:313

A Chapter 4112 discrimination claim protects individuals in the

workplace from discrimination and allows them to bring an action against

their employer:

It shall be an unlawful discriminatory practice: (A) For any

employer, because of the race, color, religion, sex, military

status, national origin, disability, age, or ancestry of any

person, to discharge without just cause, to refuse to hire, or

otherwise to discriminate against that person with respect

to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to

employment.4

A violation of Chapter 4112 subjects the defendant “to a civil action

for damages, injunctive relief, or any other appropriate relief.”5These

statutes aim to protect minorities in the workplace and provide remedies to

correct those harms.6

This Comment demonstrates that, in contrast to Luri, the better

position on this issue was taken by the United States District Court for the

Southern District of Ohio in Kramer Consulting, Inc.v. McCarthy.7The

district court (admittedly construing a different statutory claim) held that

tort reform legislation that limits punitive damages under § 2315.21 in tort

actions does not apply to statutory claims, specifically referring to Chapter

4112 claims for discrimination.8

Other courts have also determined that civil actions under Chapter

4112 are statutory in nature and establish liability for violations of a

person’s rights.9This position was supported by the Ohio Supreme Court

in Rice v. CertainTeed Corp.10 The court in Rice made a distinction

between actions involving recovery for damages to “person, [or] property”

and actions involving recovery of damages to a person’s “rights.”11 The

statutory definitions of tort action in §§ 2315.18 and 2315.21 only apply to

4OHIO REV.CODE ANN. § 4112.02(A) (West 2016).

5OHIO REV.CODE ANN. § 4112.99 (West 2016).

6Id. See also § 4112.02(A).

7No. C2-02-116, 2006 WL 581244 (S.D. Ohio Mar. 8, 2006).

8Id. at *8.

9See, e.g., Meyer v. United Parcel Serv., Inc., 882 N.E.2d 31, 37 (Ohio Ct. App. 2007).

10 704 N.E.2d 1217, 1218 (Ohio 1999).

11 Id. at 1219.