By Joseph W. Borchelt and Lauren M. Larrick

Wrongful discharge claims are on the rise in Ohio. However, as employers are taking measures to prevent harassment and discrimination in the workplace, the number of traditional Title VII discrimination claims are decreasing. To fill this void, the plaintiff’s bar is constantly developing new and innovative ways to challenge an employee’s discharge. One such claim that has gained recent traction in Ohio is wrongful discharge in violation of the public policy of Ohio.

One Ohio appellate court recently tackled this issue and held that employees terminated for upholding laws or regulations impacting public safety, without proof that the law protects them against retaliation, cannot make a claim for wrongful discharge in violation of public policy. This decision centers around one of the requirements a plaintiff must establish in a wrongful discharge in violation of public policy claim: that a clear public policy exists.

In McGlothen v. Fairborn, App. No. 2018-CA-30, Plaintiff David McGlothen was a Chief Building Officer for the City of Fairborn. Concerned that a contractor for the city was not adhering to the Ohio Building Code, McGlothen wrote a critical email to the contractor and was subsequently terminated. He alleged wrongful termination in violation of public policy, citing sections of the Ohio Building Code as the public policy he was terminated for upholding. The trial court granted summary judgment for Fairborn, holding that there was no clear public policy found in the Ohio Building Code.

The Second District Court of Appeals upheld the trial court’s decision, finding that Ohio’s employment-at-will doctrine could not be limited without clear legislative intent to prohibit employment retaliation. In other words, for a law to protect an employee from termination, that law must expressly prohibit employment retaliation for upholding or complying with the law.

In support of the holding, the court compared McGlothen’s proposed building code sections to other laws and regulations which have been found to qualify as public policy in wrongful-discharge claims:

  • R.C. 4123.90 – expressly prohibits retaliation against injured workers;
  • Ohio’s Whistleblower Statute – expresses clear public policy protecting employees who report certain matters from retaliatory employment; and
  • Federal Occupational Safety and Health Act (OSHA) – clearly forbids retaliation against those who file OSHA complaints.

The Ohio Building Code sections proposed by McGlothen merely stated procedural requirements and occupancy classifications. The appellate court found that the code sections, although intended to ensure building safety, did not expressly prohibit action against employees related to their enforcement and therefore did not meet the public policy requirement of McGlothen’s claim.

The Court also based its opinion on an Ohio Supreme Court case Dohme v. Eurand, 130 Ohio St. 3d 168 (2011), which overturned the Second District’s holding that a general public policy favoring workplace fire safety was sufficient to prove wrongful termination. The Supreme Court held that Dohme failed to cite a specific law, which does not meet the clarity requirement in a wrongful discharge for violation of public policy claim.

The appellate court’s holding in McGlothen supplements and further narrows the Ohio Supreme Court’s opinion in Dohme. These decisions limit the public policies in a wrongful discharge claim to specific laws that expressly prohibit employee retaliation. McGlothen and Dohme will likely reduce the success of future Ohio plaintiffs protesting their terminations based on public policy.

If you wish a full copy of this opinion, or have any other questions with respect to wrongful discharge in violation of public policy claims, call any one of our Employment Practices Defense attorneys.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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