The employment-at-will doctrine in Ohio underwent a significant transformation in the 1990’s with the “public policy exception.” Simply stated, prior to 1990 an at-will employee could be discharged for any reason or no reason and would have had no basis to bring a claim for “wrongful discharge.” However, in Greeley v. Miami Valley Maintenance Contractors, Inc.,

In Greeley, the court held that an employee who was fired after the employer refused to withhold court-ordered child support payments from his check could bring a cause of action for wrongful discharge. The court based its decision on the language of an Ohio statute which prohibited a discharge under these circumstances. While the court observed that the statute provided no remedy for the discharged employee, the court held that there should be one when the employer engaged in a proscribed action.

This qualification to Ohio’s common law employment-at-will doctrine has come to be known as the public policy exception. The cause of action has been referred to as “‘wrongful discharge,’ ‘abusive discharge,’ ‘retaliatory discharge,’ or ‘discharge in derogation of public policy.’”

At one time, the public policy exception was defined by where the General Assembly had adopted a specific statute forbidding an employer from discharging or disciplining an employee on the basis of a particular circumstance or occurrence.

‘Clear public policy’ sufficient to justify an exception to the employment-at-will doctrine is not limited to public policy expressed by the General Assembly in the form of statutory enactments, but may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law.

While a variety of grounds for discharges in violation of public policy have been argued, the public policy basis generally falls into one of two categories of discharges: those based on an employee’s status and those based on conduct.

Status-Based Discharge of Employees: Discrimination

The clearest expression of employee discharges forbidden by public policy may be found in the Ohio Revised Code Section 4112.02:

It shall be an unlawful discriminatory practice:

(A) For any employer, because of the race, color, religion, sex, 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.

The elements of proof for a discriminatory discharge in violation of public policy are essentially the same across protected classes, with variations tailored to the nature of the class. In general, a prima facie case for discharge based on discrimination must show:

(1)  that the plaintiff was a member of the statutorily-protected class,

(2)  that the plaintiff was discharged,

(3)  that the plaintiff was qualified for the position, and

(4)  that the plaintiff was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class.

This approach has been used in cases alleging sex discrimination by an employer,

Once a plaintiff has established a prima facie case, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee's termination. “Just cause” for discharge is established if plaintiff was terminated for reasons other than those explicitly prohibited by the statute. The plaintiff then must prove by a preponderance of the evidence that the defendant's reason for termination was false or pretextual.

Conduct-Based Discharge of Employees: Retaliatory Discharge

Retaliatory discharge claims involve the employee’s conduct. Generally, the issue is whether the employer discharged an employee for exercising a right, obligation, or other permissible conduct (e.g., whistle blowing) protected by statute or public policy.

The elements of a prima facie case of retaliation require that an employee show: ^[12]

(1)  he or she was engaged in a protected activity;

(2)  the employer knew of the employee's participation in the protected activity;

(3)  the employer took adverse employment action against the employee and stated reasons that were not the true retaliatory reason; and

(4)  there was a causal link between the protected activity and the adverse employment action.

The courts have found a viable cause of action for retaliatory discharge where an employee was fired for filing complaints regarding workplace health and safety.

(The Ohio State Bar Association website features an article in the Labor and Employment Section Newsletter, Volume 13, Number 1, Winter 2003 by Mark Landes and Jeffrey A. Stankunas that identifies several public policy tort claim cases for quick reference.)

Public Policy Elements of Wrongful Discharge

The first elements of the prima facie case of both discriminatory and retaliatory discharge claims is, necessarily, the existence of a public policy that serves to protect the class of plaintiff or his or her conduct, respectively. The Supreme Court of Ohio uses a four-element analytical framework to examine a claim for wrongful discharge in violation of public policy.

1.        Is there a clear public policy manifested in a state or federal constitution, statute or administrative regulation, or in the common law? (Clarity)

2.         Would dismissing employees under circumstances like those involved in the plaintiff's dismissal jeopardize the public policy? (Jeopardy)

3.         Was the plaintiff's dismissal motivated by conduct related to the public policy? (Causation)

4.         Did the employer lack an overriding legitimate business justification for the dismissal? (Overriding Justification)

In applying this framework, the clarity and jeopardy elements of the tort of wrongful discharge are questions of law to be determined by the court. Conversely, the causation and overriding justification elements are questions of fact for the trier-of-fact.

No Jeopardy, No Exception

When a public policy proscribing the discharge of an employee exists, it will not necessarily provide the basis for recognizing a state tort claim for wrongful discharge. The court will look to see if the statute specifically provides an exclusive remedy or one that precludes a state tort claim. Under the jeopardy analysis, in which the court examines whether the circumstances of the employee’s discharge jeopardize public policy, the court

[Inquires] into the existence of any alternative means of promoting the particular public policy to be vindicated by a common-law wrongful discharge claim. Where [] the sole source of the public policy opposing the discharge is a statute that provides the substantive right and remedies for its breach, ‘the issue of adequacy of remedies’ becomes a particularly important component of the jeopardy analysis.

Simply put, there is no need to recognize a common-law action for wrongful discharge if there already exists a statutory remedy that adequately protects society's interests.

In Wiles v. Medina Auto Parts, the court refused to recognize a cause of action for wrongful discharge in violation of public policy when the cause of action is based solely on a discharge in violation of the Family Medical Leave Act. The court reasoned “the public policy expressed in the statute would not be jeopardized by the absence of a common-law wrongful-discharge action in tort because an aggrieved employee has an alternate means of vindicating his or her statutory rights and thereby discouraging an employer from engaging in the unlawful conduct.”

No Policy, No Exception

            Under the clarity element of the analysis, the court generally looks for an explicit expression of a public policy to support the claim. In the absence of a clear articulation of the policy, the claim must fail. Thus, in Painter, the plaintiff’s claim failed because the court found “[T]here is no clear public policy in support of allowing public employees to become candidates for partisan elective office.”

The Painter court established that public policy need not be limited to that which is set out in state statutes. Thus, increasingly the courts have had to decide what constitutes public policy to meet the exception to employment-at-will. Prior to 1995, public policy exceptions were narrowly circumscribed by the letter of the law, whether it is found in statute, Constitution, or the common law.

            In Collins v. Rizkana, the court overruled lower court decisions dismissing a sexual harassment claim because the employer did not meet the statutory definition of “employer” under the law. Even though the statute did not specifically apply to the employer (he didn’t meet the statutory minimum for the number of employees), the court found a sufficient expression of public policy proscribing the employer’s conduct in this and other state statutes. In essence, the court looked to the intent of the legislature regarding the conduct rather than the text of the statute.

            In Wells v. Ormet Corp. [22] the Ohio Court of Appeals took a similar and more expansive tack. Wells, a non-union manager, had been fired for expressing his opinion at a labor-management hearing which was contrary to a position taken by the company as a reason for suspending union employees. The lower court dismissed Wells’ wrongful discharge suit finding no basis upon which to establish a public policy exception. The Court of Appeals reversed, holding:

[t]he public policy in the case sub judice consists of various established interests of society as a whole. These broad societal interests include a fair workplace, truthful grievance proceedings, job stability for long-term employees, and economic productivity. There is a clear public policy supporting the aforementioned interests, the violation of which is of similar import to the violation of a statute.

The Wells court referenced no statutes or any specific source in reaching its conclusion.

            The public policy exception to the employment-at-will doctrine in Ohio is decidedly evolutionary. Until 1990, Ohio courts recognized no cause of action for wrongful discharge based on a public policy exception to the doctrine. In a span of less than fifteen years, the court’s definition of public policy has gone from recognizing only specific statutory exceptions to that which may be found in other sources of law. Even more significantly, today’s courts may discern public policy not only from the text of the policy itself, but from the underlying intent of the policy, and, perhaps, from the broader societal interests protected by the policy. Given these developments, the contours of the public policy exception may be very difficult to discern at all.