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

IS DISCRIMINATION JUST ANOTHER TORT?: A DISCUSSION OF OHIO’S ATTEMPT TO TORTIFY EMPLOYMENT DISCRIMINATION KATHARINE R. MARKIJOHN * I. I NTRODUCTION 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. 1 This 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. 2 The 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. 3 By 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. 1 953 N.E.2d 859, 864 (Ohio Ct. App. 2011). 2 Id. at 867. 3 Id. 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.” 5 These 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 . 7 The 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. 9 This 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 4 OHIO REV.CODE ANN. § 4112.02(A) (West 2016). 5 OHIO REV.CODE ANN. § 4112.99 (West 2016). 6 Id. See also § 4112.02(A). 7 No. C2-02-116, 2006 WL 581244 (S.D. Ohio Mar. 8, 2006). 8 Id. at *8. 9 See, 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. 2018] IS DISCRIMINATION JUST ANOTHER TORT? 315 claims for injury or loss to person or property . 12 The statutes make no mention of their application when a person’s rights are injured; 13 therefore, they do not apply to claims involving injury to a person’s rights. If the Ohio General Assembly had intended to cap punitive and noneconomic damages for Chapter 4112 claims, it would have done so by referring to the damage caps directly in the language of Chapter 4112 or, at the very least, referring to Chapter 4112 in the statutory definition of tort action. Part II discusses the history of punitive damage caps—specifically §§ 2315.18 and 2315.21 of the Ohio Revised Code. Section II.B analyzes these statutes and determines whether the General Assembly intended to include Chapter 4112 discrimination claims in its definition of tort action set out in §§ 2315.18 and 2315.21. Section II.C discusses constitutional challenges raised against damage caps and their impacts on plaintiffs’ relief. Section II.D examines Ohio’s only attempt to answer this question in Luri . Part III analyzes the language in §§ 2315.18 and 2315.21 to determine whether a Chapter 4112 discrimination claim is included in the definition of tort action. Specifically, this Part discusses whether an injury to a person’s rights is included in the definition of tort action under §§ 2315.18 and 2315.21. Part IV discusses other sections of Chapter 4112, in which the General Assembly included floors on punitive damages. It also examines the language within §§ 2315.18 and 2315.21, noting the types of claims they include and exclude. Lastly, Part V explores the policy reasons for excluding Chapter 4112 claims from the definition of tort action. Section V.A addresses the purpose of remedial statutes and their role in ending discrimination. It also addresses the General Assembly’s interest in enacting remedial statutes and the purpose of allowing punitive damages to be collected in Chapter 4112 discrimination claims. This Comment answers an important question plaguing employment discrimination actions that was never addressed in Luri : whether a Chapter 4112 action is a tort action at all. This is an issue that should, and likely will, be addressed by the Ohio Supreme Court. 12 OHIO REV.CODE ANN. §§ 2315.21(A)(1), 2315.18(A)(7) (West 2016). 13 Id. 316 CAPITAL UNIVERSITY LAW REVIEW [46:313 II. T HE F ORMATION OF S TATUTORY N ONECONOMIC D AMAGE C APS A. General History One of the first provisions to place a limit on damages was former § 2307.43, which was part of the Ohio Medical Malpractice Act of 1975. 14 This statute placed a $200,000 cap on general medical malpractice damages (excluding death), with no exception for those suffering severe injuries. 15 The General Assembly passed this legislation to address a perceived malpractice insurance crisis. 16 Eventually, § 2307.43 was held unconstitutional because it violated the due-process protections of the Ohio Constitution. 17 The Ohio Supreme Court determined that the statute did “not bear a real and substantial relation to public health or welfare and... it [was] unreasonable and arbitrary.” 18 The General Assembly’s next attempt was the Tort Reform Act of 1987, which sought to change civil justice law and alleviate another “insurance crisis.” 19 Once again, the Ohio Supreme Court struck down this limit on punitive damages as unconstitutional. 20 The court examined § 2317.45, which placed a significant limitation on the collateral source rule previously adopted in Pryor v. Webber . 21 The statute required the trial court to subtract certain collateral benefits from a plaintiff’s final award of compensatory damages. 22 The court eventually determined that this mandatory deduction of collateral benefits from a plaintiff’s final award was unconstitutional because it violated the right to a jury trial, due process, and equal protection, as well as a right to a remedy. 23 Finally, the General Assembly again passed substantial tort reforms in 1997. 24 “The legislation amended, enacted, or repealed over 100 sections of the Revised Code contained in eighteen titles and thirty-eight 14 See Morris v. Savoy, 576 N.E.2d 765, 768 (Ohio 1991). 15 Id. at 768, 771–72. 16 Id. at 768. 17 Id. at 771. 18 Id. 19 See Sorrell v. Thevenir, 633 N.E.2d 504, 508–09 (Ohio 1994). 20 Id. at 512. 21 Id. at 509–10; Pryor v. Webber, 263 N.E.2d 235, 238 (Ohio 1970). 22 Sorrell , 633 N.E.2d at 510. 23 Id. at 510–13 . 24 Arbino v. Johnson & Johnson, 880 N.E.2d 420, 428 (Ohio 2007). 2018] IS DISCRIMINATION JUST ANOTHER TORT? 317 chapters.” 25 The statute amended the collateral source rule in tort actions “to require the trier of fact to consider, but not automatically set off, collateral benefits.” 26 It also capped punitive damages, allowed the trier of fact to determine damages in tort and products-liability claims, and capped noneconomic damages at different levels depending on the type of claim. 27 The caps placed on punitive and noneconomic damages, passed as part of this reform, are the key provisions examined in this Comment. B. Damage Caps and Chapter 4112 Actions In 2005, Ohio again enacted tort reform legislation that established statutory caps on noneconomic and punitive damages in tort cases. 28 The statute provides in part: There shall not be any limitation on the amount of compensatory damages that represents the economic loss of the person who is awarded the damages in the tort action. . . . [T]he amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action under this...