On December 20, 2007, H.B. 372 was signed into law by Governor Strickland. The law became effective March 18, 2008 and afds “military status” to the list of protected classes under Ohio’s discrimination law, Chapter 4112 of the Ohio Revised Code.
The new law’s definition of “military status” includes active duty, active duty for training, inactive duty for training, full-time national guard duty, and performing duty or training as a member of the Ohio organized militia. It also includes any period of time a person is absent from work due to a fitness for duty examination for such service. While the new law does not specifically address harassment based on military status, since the term was added to Ohio discrimination law, it is reasonable that a court addressing the question will likely find that harassment due to military status is actionable just like the other protected classes.
The Ohio law does not affect employee rights under the Federal Uniformed Services Employment and Reemployment Act (USERRA) which applies to employers with at least one (1) employee. USERRA provides employees with job protection of up to five (5) years for active duty.
Employees must be returned to the same or similar position they would have occupied if they would have remained continuously employed. Further, if an employee served more than 180 days, an employer may not terminate an employee without just cause for one year after the employee returns from leave (180 days if they served 180 days or less).
What does this mean for employers?
If you have not done so already, now is the time to update your handbooks and application statements regarding discrimination and harassment to include “military status.” Management training is also highly recommended to make employers aware of this new protected category.
As it is now unlawful to make or keep a record of an applicant’s (not an employee’s) military status or to solicit this information on an employment application, preemployment paperwork should be immediately reviewed and amended accordingly. Further, pursuant to discrimination law, you cannot display a “preference” for military status in job applications under a literal reading of the law. This may be an unintended consequence of the amendment, however, you are encouraged to review job advertisements and correct them until more guidance is provided on this question.