information is provided for educational and guidance purposes only. It
is not intended to constitute legal advice nor to substitute the need
for legal counsel. Entire contents Copyright 2003. Martin James
Employment-At-Will in Ohio
Martin J. O'Connell, Esq.
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
the Supreme Court of Ohio recognized a
cause of action in tort for wrongful discharge in violation of a
sufficiently clear public policy.
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.
However, in 1994, the court expanded its definition of public policy:
‘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:
The clearest expression of employee discharges
forbidden by public policy may be found in the Ohio Revised Code Section
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:
that the plaintiff was a member of the statutorily-protected class,
that the plaintiff was discharged,
that the plaintiff was qualified for the position, and
that the plaintiff was replaced by, or that his discharge permitted
the retention of, a person not belonging to the protected class.
approach has been used in cases alleging sex discrimination by an employer,
discrimination based on pregnancy,
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.
Pretext is established by either (1) a direct evidential showing that a
discriminatory reason more likely motivated the employer or (2) an indirect
evidential showing that the employer's explanation is not credible.
Conduct-Based Discharge of Employees:
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.
In addition, when an employee is discharged for refraining from illegal
actions (e.g., refusing to commit perjury) or unlawful conduct to benefit
the employer, the employee’s discharge is impermissibly retaliatory.
The elements of a prima facie case of retaliation
require that an employee show:
he or she was engaged in a protected activity;
the employer knew of the employee's participation in the protected
the employer took adverse employment action against the employee and
stated reasons that were not the true retaliatory reason; and
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 discharge of a supervisor for refusing to interfere with or breach a
collective bargaining agreement is against public policy that proscribes
tortious interference with contracts.
When an employer terminates an employee for consulting an attorney regarding
an issue that affects the employer's business interests, the employer has
violated the clear public policy of Ohio.
It is a violation of public policy for an employer to discharge or threaten
to discharge an employee who is called to jury duty.
(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.
Under this framework, the elements are clarity, jeopardy, causation, and
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
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
Thus, the existence of a statutory remedy that provides adequate relief to
fully compensate an aggrieved employee who is discharged in violation of the
statute may preclude a state tort claim.
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.”
However, the narrow contours of the exception have broadened.
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
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.
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.
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.
551 N.E.2d 981 (Ohio 1990).
Collins v. Rizkana, 652 N.E. 2d
653, 656 (Ohio 1995).
Greeley, 551 N.E.2d at 987.
Painter v. Graley, 639 N.E.2d 51,
52 (Ohio 1994).
Motley v. Flowers & Versagi Court Reporters, Inc.,
1997 Ohio App. LEXIS 5542,*12,*13 (Ohio Ct. App. 8th Dist. 1997).
Berenda v. Buzek, Kiplinger & Assocs.,
2002 Ohio 44(Ohio Ct. App. 2002).
Barker v. Scovill, Inc., 451 N.E.2d
807, 809 (Ohio 1983).
Plumbers & Steamfitters Commt. v.. Ohio Civil Rights Comm., 66
Ohio St. 2d 192 (Ohio 1981).
Barker, 451 N.E.2d at 809.
Bentley v. API Pattern Works, Inc.,
2001 Ohio 3921(Ohio Ct. App. 11th 2001).
Sidenstricker v. Miller Pavement Maintenance, Inc.,
2001 Ohio 4111 (Ohio Ct. App. 10th 2001).
Bentley, 2001 Ohio 3921(Ohio Ct.
App. 11th 2001).
Vitale v. Modern Tool & Die Co.,
2000 Ohio App. LEXIS 2743, *8 (Ohio Ct. App. 8th 2000).
Chapman v. Adia Servs., 688
N.E.2d 604, 610 (Ohio Ct. App. 1st 1997).
Shaffer v. Frontrunner, Inc.,
566 N.E.2d 193 (Ohio Ct. App. 3rd 1990); Ohio Revised Code § 2313.18
See Collins, 652 N.E.2d at 657,658.
Collins, 652 N.E.2d at 658.
Wiles v. Medina Auto Parts, 773
N.E.2d 526, 531 (Ohio 2002).
Painter, 639 N.E.2d at 57.
1999 Ohio App. LEXIS 1087 (Ohio Ct. App. 7th Mar.17, 1999).