S. B. No. 349 As Introduced

As Introduced

129th General Assembly

Regular Session

2011-2012

S. B. No. 349

Senators Turner, Tavares

Cosponsors: Senators Kearney, Sawyer, Brown, Schiavoni, Gentile, Cafaro, Skindell

A BILL

To amend sections 3314.03, 3326.11, 4111.04, 4111.05,

4111.06, 4111.07, 4111.09, 4111.11, 4111.12,

4111.13, 4111.17, 4111.99, and 4112.01, to amend,

for the purpose of adopting a new section number

as indicated in parentheses, section 4111.17

(4112.16) of the Revised Code to enact the "Fair

and Acceptable Income Required (FAIR) Act" and to

revise the enforcement of the prohibitions against

discrimination in the payment of wages.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 3314.03, 3326.11, 4111.04, 4111.05,	10
4111.06, 4111.07, 4111.09, 4111.11, 4111.12, 4111.13, 4111.17,	11
4111.99, and 4112.01 be amended, and section 4111.17 (4112.16) of	12
the Revised Code be amended for the purpose of adopting a new	13
section number as indicated in parentheses, to read as follows:	14

Sec. 3314.03. A copy of every contract entered into under	15
this section shall be filed with the superintendent of public	16
instruction.	17

(A) Each contract entered into between a sponsor and the	18
governing authority of a community school shall specify the	19
following:	20

(1) That the school shall be established as either of the	21
following:	22

(a) A nonprofit corporation established under Chapter 1702.	23
of the Revised Code, if established prior to April 8, 2003;	24

(b) A public benefit corporation established under Chapter	25
1702. of the Revised Code, if established after April 8, 2003.	26

(2) The education program of the school, including the	27
school's mission, the characteristics of the students the school	28
is expected to attract, the ages and grades of students, and the	29
focus of the curriculum;	30

(3) The academic goals to be achieved and the method of	31
measurement that will be used to determine progress toward those	32
goals, which shall include the statewide achievement assessments;	33

(4) Performance standards by which the success of the school	34
will be evaluated by the sponsor;	35

(5) The admission standards of section 3314.06 of the Revised	36
Code and, if applicable, section 3314.061 of the Revised Code;	37

(6)(a) Dismissal procedures;

(b) A requirement that the governing authority adopt an	39
attendance policy that includes a procedure for automatically	40
withdrawing a student from the school if the student without a	41
legitimate excuse fails to participate in one hundred five	42
consecutive hours of the learning opportunities offered to the	43
student.	44

(7) The ways by which the school will achieve racial and	45
ethnic balance reflective of the community it serves;	46

(8) Requirements for financial audits by the auditor of	47
state. The contract shall require financial records of the school	48
to be maintained in the same manner as are financial records of	49
school districts, pursuant to rules of the auditor of state.	50
Audits shall be conducted in accordance with section 117.10 of the	51
Revised Code.	52

(9) The facilities to be used and their locations;

(10) Qualifications of teachers, including the following:

(a) A requirement that the school's classroom teachers be	55
licensed in accordance with sections 3319.22 to 3319.31 of the	56
Revised Code, except that a community school may engage	57
noncertificated persons to teach up to twelve hours per week	58
pursuant to section 3319.301 of the Revised Code;	59

(b) A requirement that each classroom teacher initially hired	60
by the school on or after July 1, 2013, and employed to provide	61
instruction in physical education hold a valid license issued	62
pursuant to section 3319.22 of the Revised Code for teaching	63
physical education.	64

(11) That the school will comply with the following	65
requirements:	66

(a) The school will provide learning opportunities to a	67
minimum of twenty-five students for a minimum of nine hundred	68
twenty hours per school year.	69

(b) The governing authority will purchase liability	70
insurance, or otherwise provide for the potential liability of the	71
school.	72

(c) The school will be nonsectarian in its programs,	73
admission policies, employment practices, and all other	74
operations, and will not be operated by a sectarian school or	75
religious institution.	76

(d) The school will comply with sections 9.90, 9.91, 109.65,	77
121.22, 149.43, 2151.357, 2151.421, 2313.19, 3301.0710, 3301.0711,	78
3301.0712, 3301.0715, 3313.472, 3313.50, 3313.536, 3313.608,	79
3313.6012, 3313.6013, 3313.6014, 3313.6015, 3313.643, 3313.648,	80
3313.66, 3313.661, 3313.662, 3313.666, 3313.667, 3313.67,	81
3313.671, 3313.672, 3313.673, 3313.69, 3313.71, 3313.716,	82
3313.718, 3313.719, 3313.80, 3313.814, 3313.816, 3313.817,	83
3313.86, 3313.96, 3319.073, 3319.321, 3319.39, 3319.391, 3319.41,	84
3321.01, 3321.041, 3321.13, 3321.14, 3321.17, 3321.18, 3321.19,	85
3321.191, 3327.10, ~~4111.17~~4112.16, 4113.52, and 5705.391 and	86
Chapters 117., 1347., 2744., 3365., 3742., 4112., 4123., 4141.,	87
and 4167. of the Revised Code as if it were a school district and	88
will comply with section 3301.0714 of the Revised Code in the	89
manner specified in section 3314.17 of the Revised Code.	90

(e) The school shall comply with Chapter 102. and section	91
2921.42 of the Revised Code.	92

(f) The school will comply with sections 3313.61, 3313.611,	93
and 3313.614 of the Revised Code, except that for students who	94
enter ninth grade for the first time before July 1, 2010, the	95
requirement in sections 3313.61 and 3313.611 of the Revised Code	96
that a person must successfully complete the curriculum in any	97
high school prior to receiving a high school diploma may be met by	98
completing the curriculum adopted by the governing authority of	99
the community school rather than the curriculum specified in Title	100
XXXIII of the Revised Code or any rules of the state board of	101
education. Beginning with students who enter ninth grade for the	102
first time on or after July 1, 2010, the requirement in sections	103
3313.61 and 3313.611 of the Revised Code that a person must	104
successfully complete the curriculum of a high school prior to	105
receiving a high school diploma shall be met by completing the	106
Ohio core curriculum prescribed in division (C) of section	107
3313.603 of the Revised Code, unless the person qualifies under	108
division (D) or (F) of that section. Each school shall comply with	109
the plan for awarding high school credit based on demonstration of	110
subject area competency, adopted by the state board of education	111
under division (J) of section 3313.603 of the Revised Code.	112

(g) The school governing authority will submit within four	113
months after the end of each school year a report of its	114
activities and progress in meeting the goals and standards of	115
divisions (A)(3) and (4) of this section and its financial status	116
to the sponsor and the parents of all students enrolled in the	117
school.	118

(h) The school, unless it is an internet- or computer-based	119
community school, will comply with sections 3313.674 and 3313.801	120
of the Revised Code as if it were a school district.	121

(i) If the school is the recipient of moneys from a grant	122
awarded under the federal race to the top program, Division (A),	123
Title XIV, Sections 14005 and 14006 of the "American Recovery and	124
Reinvestment Act of 2009," Pub. L. No. 111-5, 123 Stat. 115, the	125
school will pay teachers based upon performance in accordance with	126
section 3317.141 and will comply with section 3319.111 of the	127
Revised Code as if it were a school district.	128

(12) Arrangements for providing health and other benefits to	129
employees;	130

(13) The length of the contract, which shall begin at the	131
beginning of an academic year. No contract shall exceed five years	132
unless such contract has been renewed pursuant to division (E) of	133
this section.	134

(14) The governing authority of the school, which shall be	135
responsible for carrying out the provisions of the contract;	136

(15) A financial plan detailing an estimated school budget	137
for each year of the period of the contract and specifying the	138
total estimated per pupil expenditure amount for each such year.	139
The plan shall specify for each year the base formula amount that	140
will be used for purposes of funding calculations under section	141
3314.08 of the Revised Code. This base formula amount for any year	142
shall not exceed the formula amount defined under section 3317.02	143
of the Revised Code. The plan may also specify for any year a	144
percentage figure to be used for reducing the per pupil amount of	145
the subsidy calculated pursuant to section 3317.029 of the Revised	146
Code the school is to receive that year under section 3314.08 of	147
the Revised Code.	148

(16) Requirements and procedures regarding the disposition of	149
employees of the school in the event the contract is terminated or	150
not renewed pursuant to section 3314.07 of the Revised Code;	151

(17) Whether the school is to be created by converting all or	152
part of an existing public school or educational service center	153
building or is to be a new start-up school, and if it is a	154
converted public school or service center building, specification	155
of any duties or responsibilities of an employer that the board of	156
education or service center governing board that operated the	157
school or building before conversion is delegating to the	158
governing authority of the community school with respect to all or	159
any specified group of employees provided the delegation is not	160
prohibited by a collective bargaining agreement applicable to such	161
employees;	162

(18) Provisions establishing procedures for resolving	163
disputes or differences of opinion between the sponsor and the	164
governing authority of the community school;	165

(19) A provision requiring the governing authority to adopt a	166
policy regarding the admission of students who reside outside the	167
district in which the school is located. That policy shall comply	168
with the admissions procedures specified in sections 3314.06 and	169
3314.061 of the Revised Code and, at the sole discretion of the	170
authority, shall do one of the following:	171

(a) Prohibit the enrollment of students who reside outside	172
the district in which the school is located;	173

(b) Permit the enrollment of students who reside in districts	174
adjacent to the district in which the school is located;	175

(c) Permit the enrollment of students who reside in any other	176
district in the state.	177

(20) A provision recognizing the authority of the department	178
of education to take over the sponsorship of the school in	179
accordance with the provisions of division (C) of section 3314.015	180
of the Revised Code;	181

(21) A provision recognizing the sponsor's authority to	182
assume the operation of a school under the conditions specified in	183
division (B) of section 3314.073 of the Revised Code;	184

(22) A provision recognizing both of the following:

185

(a) The authority of public health and safety officials to	186
inspect the facilities of the school and to order the facilities	187
closed if those officials find that the facilities are not in	188
compliance with health and safety laws and regulations;	189

(b) The authority of the department of education as the	190
community school oversight body to suspend the operation of the	191
school under section 3314.072 of the Revised Code if the	192
department has evidence of conditions or violations of law at the	193
school that pose an imminent danger to the health and safety of	194
the school's students and employees and the sponsor refuses to	195
take such action.	196

(23) A description of the learning opportunities that will be	197
offered to students including both classroom-based and	198
non-classroom-based learning opportunities that is in compliance	199
with criteria for student participation established by the	200
department under division (L)(2) of section 3314.08 of the Revised	201
Code;	202

(24) The school will comply with sections 3302.04 and	203
3302.041 of the Revised Code, except that any action required to	204
be taken by a school district pursuant to those sections shall be	205
taken by the sponsor of the school. However, the sponsor shall not	206
be required to take any action described in division (F) of	207
section 3302.04 of the Revised Code.	208

(25) Beginning in the 2006-2007 school year, the school will	209
open for operation not later than the thirtieth day of September	210
each school year, unless the mission of the school as specified	211
under division (A)(2) of this section is solely to serve dropouts.	212
In its initial year of operation, if the school fails to open by	213
the thirtieth day of September, or within one year after the	214
adoption of the contract pursuant to division (D) of section	215
3314.02 of the Revised Code if the mission of the school is solely	216
to serve dropouts, the contract shall be void.	217

(B) The community school shall also submit to the sponsor a	218
comprehensive plan for the school. The plan shall specify the	219
following:	220

(1) The process by which the governing authority of the	221
school will be selected in the future;	222

(2) The management and administration of the school;

223

(3) If the community school is a currently existing public	224
school or educational service center building, alternative	225
arrangements for current public school students who choose not to	226
attend the converted school and for teachers who choose not to	227
teach in the school or building after conversion;	228

(4) The instructional program and educational philosophy of	229
the school;	230

(5) Internal financial controls.

231

(C) A contract entered into under section 3314.02 of the	232
Revised Code between a sponsor and the governing authority of a	233
community school may provide for the community school governing	234
authority to make payments to the sponsor, which is hereby	235
authorized to receive such payments as set forth in the contract	236
between the governing authority and the sponsor. The total amount	237
of such payments for oversight and monitoring of the school shall	238
not exceed three per cent of the total amount of payments for	239
operating expenses that the school receives from the state.	240

(D) The contract shall specify the duties of the sponsor	241
which shall be in accordance with the written agreement entered	242
into with the department of education under division (B) of	243
section 3314.015 of the Revised Code and shall include the	244
following:	245

(1) Monitor the community school's compliance with all laws	246
applicable to the school and with the terms of the contract;	247

(2) Monitor and evaluate the academic and fiscal performance	248
and the organization and operation of the community school on at	249
least an annual basis;	250

(3) Report on an annual basis the results of the evaluation	251
conducted under division (D)(2) of this section to the department	252
of education and to the parents of students enrolled in the	253
community school;	254

(4) Provide technical assistance to the community school in	255
complying with laws applicable to the school and terms of the	256
contract;	257

(5) Take steps to intervene in the school's operation to	258
correct problems in the school's overall performance, declare the	259
school to be on probationary status pursuant to section 3314.073	260
of the Revised Code, suspend the operation of the school pursuant	261
to section 3314.072 of the Revised Code, or terminate the contract	262
of the school pursuant to section 3314.07 of the Revised Code as	263
determined necessary by the sponsor;	264

(6) Have in place a plan of action to be undertaken in the	265
event the community school experiences financial difficulties or	266
closes prior to the end of a school year.	267

(E) Upon the expiration of a contract entered into under this	268
section, the sponsor of a community school may, with the approval	269
of the governing authority of the school, renew that contract for	270
a period of time determined by the sponsor, but not ending earlier	271
than the end of any school year, if the sponsor finds that the	272
school's compliance with applicable laws and terms of the contract	273
and the school's progress in meeting the academic goals prescribed	274
in the contract have been satisfactory. Any contract that is	275
renewed under this division remains subject to the provisions of	276
sections 3314.07, 3314.072, and 3314.073 of the Revised Code.	277

(F) If a community school fails to open for operation within	278
one year after the contract entered into under this section is	279
adopted pursuant to division (D) of section 3314.02 of the Revised	280
Code or permanently closes prior to the expiration of the	281
contract, the contract shall be void and the school shall not	282
enter into a contract with any other sponsor. A school shall not	283
be considered permanently closed because the operations of the	284
school have been suspended pursuant to section 3314.072 of the	285
Revised Code.	286

Sec. 3326.11. Each science, technology, engineering, and	287
mathematics school established under this chapter and its	288
governing body shall comply with sections 9.90, 9.91, 109.65,	289
121.22, 149.43, 2151.357, 2151.421, 2313.19, 2921.42, 2921.43,	290
3301.0714, 3301.0715, 3313.14, 3313.15, 3313.16, 3313.18,	291
3313.201, 3313.26, 3313.472, 3313.48, 3313.481, 3313.482, 3313.50,	292
3313.536, 3313.608, 3313.6012, 3313.6013, 3313.6014, 3313.6015,	293
3313.61, 3313.611, 3313.614, 3313.615, 3313.643, 3313.648,	294
3313.66, 3313.661, 3313.662, 3313.666, 3313.667, 3313.67,	295
3313.671, 3313.672, 3313.673, 3313.674, 3313.69, 3313.71,	296
3313.716, 3313.718, 3313.719, 3313.80, 3313.801, 3313.814,	297
3313.816, 3313.817, 3313.86, 3313.88, 3313.96, 3319.073, 3319.21,	298
3319.32, 3319.321, 3319.35, 3319.39, 3319.391, 3319.41, 3319.45,	299
3321.01, 3321.041, 3321.13, 3321.14, 3321.17, 3321.18, 3321.19,	300
3321.191, 3327.10, ~~4111.17~~4112.16, 4113.52, and 5705.391 and	301
Chapters 102., 117., 1347., 2744., 3307., 3309., 3365., 3742.,	302
4112., 4123., 4141., and 4167. of the Revised Code as if it were a	303
school district.	304

Sec. 4111.04. The director of commerce may:

305

(A) Investigate and ascertain the wages of persons employed	306
in any occupation in the state;	307

(B) Enter and inspect the place of business or employment of	308
any employer for the purpose of inspecting any books, registers,	309
payrolls, or other records of the employer that in any way relate	310
to the question of wages, hours, and other conditions of	311
employment of any employees, and may question the employees for	312
the purpose of ascertaining whether sections 4111.01 to ~~4111.17~~	313
4111.14 and 4112.16 of the Revised Code, and the rules adopted	314
thereunder, have been and are being obeyed. In conducting an	315
inspection of the records of an employer, the director shall make	316
every effort to coordinate the inspection with those conducted by	317
the federal agency responsible for enforcement of the "Fair Labor	318
Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A. 201, as	319
amended. If the federal agency has completed an audit or	320
examination of the employer's records within the sixty days prior	321
to the date the director notifies the employer of the director's	322
intent to examine the employer's records, the director shall	323
accept in lieu of the director's own inspection, a report from the	324
federal agency that the employer is in compliance with the federal	325
act, unless the director has reasonable grounds for believing that	326
the report is inaccurate or incomplete for the purposes of	327
sections 4111.01 to 4111.13 of the Revised Code, or that events	328
occurring since the audit give the director reasonable grounds for	329
believing that a violation of sections 4111.01 to 4111.13 of the	330
Revised Code has occurred.	331

(C) In the event the director is prohibited by any employer	332
from carrying out the intent of this section, the director may	333
issue subpoenas and compel attendance of witnesses and production	334
of papers, books, accounts, payrolls, documents, records, and	335
testimony relating and relevant to the director's investigation.	336

Sec. 4111.05. The director of commerce shall adopt rules in	337
accordance with Chapter 119. of the Revised Code as the director	338
considers appropriate to carry out the purposes of sections	339
4111.01 to ~~4111.17~~4111.14 of the Revised Code. The rules may be	340
amended from time to time and may include, but are not limited to,	341
rules defining and governing apprentices, their number,	342
proportion, and length of service; bonuses and special pay for	343
special or extra work; permitted deductions or charges to	344
employees for board, lodging, apparel, or other facilities or	345
services customarily furnished by employers to employees;	346
inclusion of ascertainable gratuities in wages paid; allowances	347
for unascertainable gratuities or for other special conditions or	348
circumstances which may be usual in particular employer-employee	349
relationships; and the method of computation or the period of time	350
over which wages may be averaged to determine whether the minimum	351
wage or overtime rate has been paid.	352

Sec. 4111.06. In order to prevent curtailment of	353
opportunities for employment, to avoid undue hardship, and to	354
safeguard the minimum wage rates under sections 4111.01 to ~~4111.17~~	355
4111.14 of the Revised Code, the director of commerce shall adopt	356
rules under section 4111.05 of the Revised Code, permitting	357
employment in any occupation at wages lower than the wage rates	358
applicable under sections 4111.01 to ~~4111.17~~4111.14 of the	359
Revised Code, of individuals whose earning capacity is impaired by	360
physical or mental deficiencies or injuries. The rules shall	361
provide for licenses to be issued authorizing employment at the	362
wages of specific individuals or groups of employees, or by	363
specific employers or groups of employers, pursuant to the rules.	364
The rules shall not conflict with the "Americans with Disabilities	365
Act of 1990," 104 Stat. 328, 42 U.S.C.A. 12111, et seq.	366

Sec. 4111.07. The director of commerce may adopt rules under	367
section 4111.05 of the Revised Code, permitting employment of	368
apprentices at a wage rate not less than eighty-five per cent of	369
the minimum wage rate applicable under sections 4111.01 to ~~4111.17~~	370
4111.14 of the Revised Code. The rules shall provide for licenses	371
to be issued for periods not to exceed ninety days and authorizing	372
employment at the wages of specific individuals or groups of	373
employees, or by specific employers or groups of employers,	374
pursuant to the rules.	375

Sec. 4111.09. Every employer subject to sections 4111.01 to	376
~~4111.17~~4111.14 and 4112.16 of the Revised Code, or to any rules	377
issued thereunder, shall keep a summary of the sections, approved	378
by the director of commerce, and copies of any applicable rules	379
issued thereunder, or a summary of the rules, posted in a	380
conspicuous and accessible place in or about the premises wherein	381
any person subject thereto is employed. The director of commerce	382
shall make the summary described in this section available on the	383
web site of the department of commerce. The director shall update	384
this summary as necessary, but not less than annually, in order to	385
reflect changes in the minimum wage rate as required under Section	386
34a of Article II, Ohio Constitution. Employees and employers	387
shall be furnished copies of the summaries and rules by the state,	388
on request, without charge.	389

Sec. 4111.11. Any standards relating to minimum wages,	390
overtime compensation, or other working conditions in effect under	391
any other law of this state on the effective date of sections	392
4111.01 to ~~4111.17~~4111.14 of the Revised Code, which are more	393
favorable to employees than those applicable to employees under	394
sections or regulations issued hereunder, are not amended,	395
rescinded, or otherwise affected by said sections, but continue in	396
full force and effect, and may be enforced as provided by law	397
until they are specifically superseded by standards more favorable	398
to the employees by operation of or in accordance with regulations	399
issued under said sections.	400

Sec. 4111.12. Nothing in sections 4111.01 to ~~4111.17~~4111.14	401
of the Revised Code interferes with, impedes, or in any way	402
diminishes the right of employees to bargain collectively with	403
their employers through representatives of their own choosing in	404
order to establish wages or other conditions of work in excess of	405
the applicable minimum under sections 4111.01 to ~~4111.17~~4111.14	406
of the Revised Code.	407

Sec. 4111.13. (A) No employer shall hinder or delay the	408
director of commerce in the performance of the director's duties	409
in the enforcement of sections 4111.01 to ~~4111.17~~4111.14 of the	410
Revised Code, or refuse to admit the director to any place of	411
employment, or fail to make, keep, and preserve any records as	412
required under those sections, or falsify any of those records, or	413
refuse to make them accessible to the director upon demand, or	414
refuse to furnish them or any other information required for the	415
proper enforcement of those sections to the director upon demand,	416
or fail to post a summary of those sections or a copy of any	417
applicable rules as required by section 4111.09 of the Revised	418
Code. Each day of violation constitutes a separate offense.	419

(B) No employer shall discharge or in any other manner	420
discriminate against any employee because the employee has made	421
any complaint to the employee's employer, or to the director, that	422
the employee has not been paid wages in accordance with sections	423
4111.01 to ~~4111.17~~4111.14 of the Revised Code, or because the	424
employee has made any complaint or is about to cause to be	425
instituted any proceeding under or related to those sections, or	426
because the employee has testified or is about to testify in any	427
proceeding.	428

(C) No employer shall pay or agree to pay wages at a rate	429
less than the rate applicable under sections 4111.01 to ~~4111.17~~	430
4111.14 of the Revised Code. Each week or portion thereof for	431
which the employer pays any employee less than the rate applicable	432
under those sections constitutes a separate offense as to each	433
employer.	434

(D) No employer shall otherwise violate sections 4111.01 to	435
~~4111.17~~4111.14 of the Revised Code, or any rule adopted	436
thereunder. Each day of violation constitutes a separate offense.	437

Sec. 4111.99. (A) Whoever violates division (A) or (D) of	438
section 4111.13 of the Revised Code is guilty of a misdemeanor of	439
the fourth degree.	440

(B) Whoever violates division (B) or (C) of section 4111.13	441
of the Revised Code is guilty of a misdemeanor of the third	442
degree.	443

~~(C) Whoever violates section 4111.17 of the Revised Code is~~	444
~~guilty of a minor misdemeanor.~~	445

Sec. 4112.01. (A) As used in this chapter:

446

(1) "Person" includes one or more individuals, partnerships,	447
associations, organizations, corporations, legal representatives,	448
trustees, trustees in bankruptcy, receivers, and other organized	449
groups of persons. "Person" also includes, but is not limited to,	450
any owner, lessor, assignor, builder, manager, broker,	451
salesperson, appraiser, agent, employee, lending institution, and	452
the state and all political subdivisions, authorities, agencies,	453
boards, and commissions of the state.	454

(2) "Employer" includes the state, any political subdivision	455
of the state, any person employing four or more persons within the	456
state, and any person acting directly or indirectly in the	457
interest of an employer.	458

(3) "Employee" means an individual employed by any employer	459
but does not include any individual employed in the domestic	460
service of any person.	461

(4) "Labor organization" includes any organization that	462
exists, in whole or in part, for the purpose of collective	463
bargaining or of dealing with employers concerning grievances,	464
terms or conditions of employment, or other mutual aid or	465
protection in relation to employment.	466

(5) "Employment agency" includes any person regularly	467
undertaking, with or without compensation, to procure	468
opportunities to work or to procure, recruit, refer, or place	469
employees.	470

(6) "Commission" means the Ohio civil rights commission	471
created by section 4112.03 of the Revised Code.	472

(7) "Discriminate" includes segregate or separate.

473

(8) "Unlawful discriminatory practice" means any act	474
prohibited by section 4112.02, 4112.021, or 4112.022 of the	475
Revised Code.	476

(9) "Place of public accommodation" means any inn,	477
restaurant, eating house, barbershop, public conveyance by air,	478
land, or water, theater, store, other place for the sale of	479
merchandise, or any other place of public accommodation or	480
amusement of which the accommodations, advantages, facilities, or	481
privileges are available to the public.	482

(10) "Housing accommodations" includes any building or	483
structure, or portion of a building or structure, that is used or	484
occupied or is intended, arranged, or designed to be used or	485
occupied as the home residence, dwelling, dwelling unit, or	486
sleeping place of one or more individuals, groups, or families	487
whether or not living independently of each other; and any vacant	488
land offered for sale or lease. "Housing accommodations" also	489
includes any housing accommodations held or offered for sale or	490
rent by a real estate broker, salesperson, or agent, by any other	491
person pursuant to authorization of the owner, by the owner, or by	492
the owner's legal representative.	493

(11) "Restrictive covenant" means any specification limiting	494
the transfer, rental, lease, or other use of any housing	495
accommodations because of race, color, religion, sex, military	496
status, familial status, national origin, disability, or ancestry,	497
or any limitation based upon affiliation with or approval by any	498
person, directly or indirectly, employing race, color, religion,	499
sex, military status, familial status, national origin,	500
disability, or ancestry as a condition of affiliation or approval.	501

(12) "Burial lot" means any lot for the burial of deceased	502
persons within any public burial ground or cemetery, including,	503
but not limited to, cemeteries owned and operated by municipal	504
corporations, townships, or companies or associations incorporated	505
for cemetery purposes.	506

(13) "Disability" means a physical or mental impairment that	507
substantially limits one or more major life activities, including	508
the functions of caring for one's self, performing manual tasks,	509
walking, seeing, hearing, speaking, breathing, learning, and	510
working; a record of a physical or mental impairment; or being	511
regarded as having a physical or mental impairment.	512

(14) Except as otherwise provided in section 4112.021 of the	513
Revised Code, "age" means at least forty years old.	514

(15) "Familial status" means either of the following:

515

(a) One or more individuals who are under eighteen years of	516
age and who are domiciled with a parent or guardian having legal	517
custody of the individual or domiciled, with the written	518
permission of the parent or guardian having legal custody, with a	519
designee of the parent or guardian;	520

(b) Any person who is pregnant or in the process of securing	521
legal custody of any individual who is under eighteen years of	522
age.	523

(16)(a) Except as provided in division (A)(16)(b) of this	524
section, "physical or mental impairment" includes any of the	525
following:	526

(i) Any physiological disorder or condition, cosmetic	527
disfigurement, or anatomical loss affecting one or more of the	528
following body systems: neurological; musculoskeletal; special	529
sense organs; respiratory, including speech organs;	530
cardiovascular; reproductive; digestive; genito-urinary; hemic and	531
lymphatic; skin; and endocrine;	532

(ii) Any mental or psychological disorder, including, but not	533
limited to, mental retardation, organic brain syndrome, emotional	534
or mental illness, and specific learning disabilities;	535

(iii) Diseases and conditions, including, but not limited to,	536
orthopedic, visual, speech, and hearing impairments, cerebral	537
palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis,	538
cancer, heart disease, diabetes, human immunodeficiency virus	539
infection, mental retardation, emotional illness, drug addiction,	540
and alcoholism.	541

(b) "Physical or mental impairment" does not include any of	542
the following:	543

(i) Homosexuality and bisexuality;

544

(ii) Transvestism, transsexualism, pedophilia, exhibitionism,	545
voyeurism, gender identity disorders not resulting from physical	546
impairments, or other sexual behavior disorders;	547

(iii) Compulsive gambling, kleptomania, or pyromania;

548

(iv) Psychoactive substance use disorders resulting from the	549
current illegal use of a controlled substance or the current use	550
of alcoholic beverages.	551

(17) "Dwelling unit" means a single unit of residence for a	552
family of one or more persons.	553

(18) "Common use areas" means rooms, spaces, or elements	554
inside or outside a building that are made available for the use	555
of residents of the building or their guests, and includes, but is	556
not limited to, hallways, lounges, lobbies, laundry rooms, refuse	557
rooms, mail rooms, recreational areas, and passageways among and	558
between buildings.	559

(19) "Public use areas" means interior or exterior rooms or	560
spaces of a privately or publicly owned building that are made	561
available to the general public.	562

(20) "Controlled substance" has the same meaning as in	563
section 3719.01 of the Revised Code.	564

(21) "Disabled tenant" means a tenant or prospective tenant	565
who is a person with a disability.	566

(22) "Military status" means a person's status in "service in	567
the uniformed services" as defined in section 5923.05 of the	568
Revised Code.	569

(23) "Aggrieved person" includes both of the following:

570

(a) Any person who claims to have been injured by any	571
unlawful discriminatory practice described in division (H) of	572
section 4112.02 of the Revised Code;	573

(b) Any person who believes that the person will be injured	574
by, any unlawful discriminatory practice described in division (H)	575
of section 4112.02 of the Revised Code that is about to occur.	576

(B) For the purposes of divisions (A) to (F) of section	577
4112.02 of the Revised Code, the terms "because of sex" and "on	578
the basis of sex" include, but are not limited to, because of or	579
on the basis of pregnancy, any illness arising out of and	580
occurring during the course of a pregnancy, childbirth, or related	581
medical conditions. Women affected by pregnancy, childbirth, or	582
related medical conditions shall be treated the same for all	583
employment-related purposes, including receipt of benefits under	584
fringe benefit programs, as other persons not so affected but	585
similar in their ability or inability to work, and nothing in	586
division (B) of section ~~4111.17~~4112.16 of the Revised Code shall	587
be interpreted to permit otherwise. This division shall not be	588
construed to require an employer to pay for health insurance	589
benefits for abortion, except where the life of the mother would	590
be endangered if the fetus were carried to term or except where	591
medical complications have arisen from the abortion, provided that	592
nothing in this division precludes an employer from providing	593
abortion benefits or otherwise affects bargaining agreements in	594
regard to abortion.	595

~~Sec. 4111.17.~~ Sec. 4112.16. (A) No employer, including the state	596
and political subdivisions thereof, shall discriminate in the	597
payment of wages on the basis of race, color, religion, sex, age,	598
national origin, sexual orientation, gender identity, or ancestry	599
by paying wages to any employee at a rate less than the rate at	600
which the employer pays wages to another employee for equal work	601
on jobs the performance of which requires equal skill, effort, and	602
responsibility, and which are performed under similar conditions.	603

(B) Nothing in this section prohibits an employer from paying	604
wages to one employee at a rate different from that at which the	605
employer pays another employee for the performance of equal work	606
under similar conditions on jobs requiring equal skill, effort,	607
and responsibility, when the payment is made pursuant to any of	608
the following:	609

(1) A seniority system;

610

(2) A merit system;

611

(3) A system which measures earnings by the quantity or	612
quality of production;	613

(4) A wage rate differential determined by any bona fide	614
factor ~~other than race, color, religion, sex, age, national~~	615
~~origin, or ancestry~~, such as education, training, or experience	616
that meets the criteria described in division (C) of this section.	617

(C)(1) An employer may defend a wage rate differential made	618
under division (B)(4) of this section only if the employer can	619
demonstrate all of the following:	620

(a) The difference is based on a factor substantially related	621
to the employee's position and performance, such as education,	622
training, or experience.	623

(b) The difference is not related to the employee's race,	624
color, religion, sex, age, national origin, sexual orientation,	625
gender identity, or ancestry.	626

627

(2) The defense described in division (C)(1) of this section	628
shall be rebutted if an employee making an allegation of wage	629
discrimination or the commission demonstrates both of the	630
following:	631

(a) An alternative employment practice exists that would	632
serve the same business purpose without producing the wage rate	633
differential;	634

(b) The employer has refused to adopt the alternative	635
practice.	636

(D) No employer shall reduce the wage rate of any employee in	637
order to comply with this section.	638

~~(D)~~(E) The ~~director of commerce~~commission shall carry out,	639
administer, and enforce this section. Any employee discriminated	640
against in violation of this section may sue in any court of	641
competent jurisdiction to recover two times the amount of the	642
difference between the wages actually received and the wages	643
received by a person performing equal work for the employer, from	644
the date of the commencement of the violation, and for costs,	645
including attorney fees. Notwithstanding the definitions of "tort	646
action" in sections 2315.18 to 2315.21 of the Revised Code, such	647
an action shall be considered a tort action for the purposes of	648
those sections and shall be subject to sections 2315.18 to 2315.21	649
of the Revised Code, except to the extent those sections conflict	650
with this section. The ~~director~~commission may take an assignment	651
of any such wage claim in trust for such employee and sue in the	652
employee's behalf. In any civil action under this section, two or	653
more employees of the same employer may join as co-plaintiffs in	654
one action. The ~~director~~commission may sue in one action for	655
claims assigned to the ~~director~~commission by two or more	656
employees of the same employer. No agreement to work for a	657
discriminatory wage constitutes a defense for any civil or	658
criminal action to enforce this section. No employer shall	659
discriminate against any employee because such employee makes a	660
complaint or institutes, or testifies in, any proceeding under	661
this section.	662

~~(E)~~(F) Any action arising under this section shall be	663
initiated within one year after the date of violation.	664

(G)(1) No employer shall discriminate against any employee	665
because the employee makes a complaint, or institutes or testifies	666
in any proceeding, under this section.	667

(2) No employer shall discriminate against an employee for	668
inquiring about, discussing, or disclosing the wages of the	669
employee or another employee in response to a complaint or charge,	670
or in furtherance of a discrimination investigation, proceeding,	671
hearing, or action, or an investigation conducted by the employer.	672

(3) Any person discriminated against in violation of division	673
(G)(1) or (G)(2) of this section may sue in any court of competent	674
jurisdiction to recover damages, injunctive relief, or any other	675
appropriate relief.	676

(H) In addition to any other award made under this section,	677
the court or jury may award punitive or exemplary damages in	678
accordance with section 2315.21 of the Revised Code in an amount	679
sufficient to deter future violations.	680

(I) As used in this section:

681

(1) "Sexual orientation" means heterosexuality,	682
homosexuality, or bisexuality, whether actual or perceived.	683

(2) "Gender identity" means an individual's self-perception,	684
or perception of that person by another, of the individual's	685
identity as male or female as realized through the person's	686
appearance, behavior, or physical characteristics, regardless of	687
whether such appearance, behavior, or physical characteristics are	688
in accord with or opposed to the person's physical anatomy,	689
chromosomal sex, or sex at birth.	690

Section 2. That existing sections 3314.03, 3326.11, 4111.04,	691
4111.05, 4111.06, 4111.07, 4111.09, 4111.11, 4111.12, 4111.13,	692
4111.17, 4111.99, and 4112.01 of the Revised Code are hereby	693
repealed.	694

Section 3. The General Assembly, in enacting this	695
legislation, hereby declares its intent to ensure equal pay for	696
women in Ohio and to correct the historical wage disparity that	697
has occurred between the sexes.	698

Section 4. This act shall be known as the "Fair and	699
Acceptable Income Required (FAIR) Act."	700