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
SUMMARY

The 2011 decision in Luri v. Republic Services, Inc., by the Eighth District Court of Appeals for Cuyahoga County, Ohio, was wrongfully decided because the Court failed to acknowledge that Ohio's discrimination statute is not a tort action under the Ohio Tort Reform Act; therefore, the damage caps set out in the Ohio Tort Reform Act do not apply to Ohio discrimination claims.

 
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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.

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