As Introduced

129th General Assembly
Regular Session
2011-2012
S. B. No. 351


Senator Tavares 

Cosponsors: Senators Turner, Sawyer, Gentile, Kearney, Smith, Brown 



A BILL
To amend sections 4112.02, 4112.05, 4112.08, 4112.14, 1
4112.15, and 4112.99 of the Revised Code to 2
prohibit employers, employment agencies, personnel 3
placement services, and labor organizations from 4
requiring an applicant or employee to provide 5
access to private electronic accounts of the 6
applicant or employee.7


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

       Section 1.  That sections 4112.02, 4112.05, 4112.08, 4112.14, 8
4112.15, and 4112.99 of the Revised Code be amended to read as 9
follows:10

       Sec. 4112.02.  It shall be an unlawful discriminatory 11
practice:12

       (A) For any employer, because of the race, color, religion, 13
sex, military status, national origin, disability, age, or 14
ancestry of any person, to discharge without just cause, to refuse 15
to hire, or otherwise to discriminate against that person with 16
respect to hire, tenure, terms, conditions, or privileges of 17
employment, or any matter directly or indirectly related to 18
employment.19

       (B) For an employment agency or personnel placement service, 20
because of race, color, religion, sex, military status, national 21
origin, disability, age, or ancestry, to do any of the following:22

       (1) Refuse or fail to accept, register, classify properly, or 23
refer for employment, or otherwise discriminate against any 24
person;25

       (2) Comply with a request from an employer for referral of 26
applicants for employment if the request directly or indirectly 27
indicates that the employer fails to comply with the provisions of 28
sections 4112.01 to 4112.07 of the Revised Code.29

       (C) For any labor organization to do any of the following:30

       (1) Limit or classify its membership on the basis of race, 31
color, religion, sex, military status, national origin, 32
disability, age, or ancestry;33

       (2) Discriminate against, limit the employment opportunities 34
of, or otherwise adversely affect the employment status, wages, 35
hours, or employment conditions of any person as an employee 36
because of race, color, religion, sex, military status, national 37
origin, disability, age, or ancestry.38

       (D) For any employer, labor organization, or joint 39
labor-management committee controlling apprentice training 40
programs to discriminate against any person because of race, 41
color, religion, sex, military status, national origin, 42
disability, or ancestry in admission to, or employment in, any 43
program established to provide apprentice training.44

       (E) Except where based on a bona fide occupational 45
qualification certified in advance by the commission, for any 46
employer, employment agency, personnel placement service, or labor 47
organization, prior to employment or admission to membership, to 48
do any of the following:49

       (1) Elicit or attempt to elicit any information concerning 50
the race, color, religion, sex, military status, national origin, 51
disability, age, or ancestry of an applicant for employment or 52
membership;53

       (2) Make or keep a record of the race, color, religion, sex, 54
military status, national origin, disability, age, or ancestry of 55
any applicant for employment or membership;56

       (3) Use any form of application for employment, or personnel 57
or membership blank, seeking to elicit information regarding race, 58
color, religion, sex, military status, national origin, 59
disability, age, or ancestry; but an employer holding a contract 60
containing a nondiscrimination clause with the government of the 61
United States, or any department or agency of that government, may 62
require an employee or applicant for employment to furnish 63
documentary proof of United States citizenship and may retain that 64
proof in the employer's personnel records and may use photographic 65
or fingerprint identification for security purposes;66

       (4) Print or publish or cause to be printed or published any 67
notice or advertisement relating to employment or membership 68
indicating any preference, limitation, specification, or 69
discrimination, based upon race, color, religion, sex, military 70
status, national origin, disability, age, or ancestry;71

       (5) Announce or follow a policy of denying or limiting, 72
through a quota system or otherwise, employment or membership 73
opportunities of any group because of the race, color, religion, 74
sex, military status, national origin, disability, age, or 75
ancestry of that group;76

       (6) Utilize in the recruitment or hiring of persons any 77
employment agency, personnel placement service, training school or 78
center, labor organization, or any other employee-referring source 79
known to discriminate against persons because of their race, 80
color, religion, sex, military status, national origin, 81
disability, age, or ancestry.82

       (F) For any person seeking employment to publish or cause to 83
be published any advertisement that specifies or in any manner 84
indicates that person's race, color, religion, sex, military 85
status, national origin, disability, age, or ancestry, or 86
expresses a limitation or preference as to the race, color, 87
religion, sex, military status, national origin, disability, age, 88
or ancestry of any prospective employer.89

       (G) For any proprietor or any employee, keeper, or manager of 90
a place of public accommodation to deny to any person, except for 91
reasons applicable alike to all persons regardless of race, color, 92
religion, sex, military status, national origin, disability, age, 93
or ancestry, the full enjoyment of the accommodations, advantages, 94
facilities, or privileges of the place of public accommodation.95

       (H) For any person to do any of the following:96

       (1) Refuse to sell, transfer, assign, rent, lease, sublease, 97
or finance housing accommodations, refuse to negotiate for the 98
sale or rental of housing accommodations, or otherwise deny or 99
make unavailable housing accommodations because of race, color, 100
religion, sex, military status, familial status, ancestry, 101
disability, or national origin;102

       (2) Represent to any person that housing accommodations are 103
not available for inspection, sale, or rental, when in fact they 104
are available, because of race, color, religion, sex, military 105
status, familial status, ancestry, disability, or national origin;106

       (3) Discriminate against any person in the making or 107
purchasing of loans or the provision of other financial assistance 108
for the acquisition, construction, rehabilitation, repair, or 109
maintenance of housing accommodations, or any person in the making 110
or purchasing of loans or the provision of other financial 111
assistance that is secured by residential real estate, because of 112
race, color, religion, sex, military status, familial status, 113
ancestry, disability, or national origin or because of the racial 114
composition of the neighborhood in which the housing 115
accommodations are located, provided that the person, whether an 116
individual, corporation, or association of any type, lends money 117
as one of the principal aspects or incident to the person's 118
principal business and not only as a part of the purchase price of 119
an owner-occupied residence the person is selling nor merely 120
casually or occasionally to a relative or friend;121

       (4) Discriminate against any person in the terms or 122
conditions of selling, transferring, assigning, renting, leasing, 123
or subleasing any housing accommodations or in furnishing 124
facilities, services, or privileges in connection with the 125
ownership, occupancy, or use of any housing accommodations, 126
including the sale of fire, extended coverage, or homeowners 127
insurance, because of race, color, religion, sex, military status, 128
familial status, ancestry, disability, or national origin or 129
because of the racial composition of the neighborhood in which the 130
housing accommodations are located;131

       (5) Discriminate against any person in the terms or 132
conditions of any loan of money, whether or not secured by 133
mortgage or otherwise, for the acquisition, construction, 134
rehabilitation, repair, or maintenance of housing accommodations 135
because of race, color, religion, sex, military status, familial 136
status, ancestry, disability, or national origin or because of the 137
racial composition of the neighborhood in which the housing 138
accommodations are located;139

       (6) Refuse to consider without prejudice the combined income 140
of both husband and wife for the purpose of extending mortgage 141
credit to a married couple or either member of a married couple;142

       (7) Print, publish, or circulate any statement or 143
advertisement, or make or cause to be made any statement or 144
advertisement, relating to the sale, transfer, assignment, rental, 145
lease, sublease, or acquisition of any housing accommodations, or 146
relating to the loan of money, whether or not secured by mortgage 147
or otherwise, for the acquisition, construction, rehabilitation, 148
repair, or maintenance of housing accommodations, that indicates 149
any preference, limitation, specification, or discrimination based 150
upon race, color, religion, sex, military status, familial status, 151
ancestry, disability, or national origin, or an intention to make 152
any such preference, limitation, specification, or discrimination;153

       (8) Except as otherwise provided in division (H)(8) or (17) 154
of this section, make any inquiry, elicit any information, make or 155
keep any record, or use any form of application containing 156
questions or entries concerning race, color, religion, sex, 157
military status, familial status, ancestry, disability, or 158
national origin in connection with the sale or lease of any 159
housing accommodations or the loan of any money, whether or not 160
secured by mortgage or otherwise, for the acquisition, 161
construction, rehabilitation, repair, or maintenance of housing 162
accommodations. Any person may make inquiries, and make and keep 163
records, concerning race, color, religion, sex, military status, 164
familial status, ancestry, disability, or national origin for the 165
purpose of monitoring compliance with this chapter.166

       (9) Include in any transfer, rental, or lease of housing 167
accommodations any restrictive covenant, or honor or exercise, or 168
attempt to honor or exercise, any restrictive covenant;169

       (10) Induce or solicit, or attempt to induce or solicit, a 170
housing accommodations listing, sale, or transaction by 171
representing that a change has occurred or may occur with respect 172
to the racial, religious, sexual, military status, familial 173
status, or ethnic composition of the block, neighborhood, or other 174
area in which the housing accommodations are located, or induce or 175
solicit, or attempt to induce or solicit, a housing accommodations 176
listing, sale, or transaction by representing that the presence or 177
anticipated presence of persons of any race, color, religion, sex, 178
military status, familial status, ancestry, disability, or 179
national origin, in the block, neighborhood, or other area will or 180
may have results including, but not limited to, the following:181

       (a) The lowering of property values;182

       (b) A change in the racial, religious, sexual, military 183
status, familial status, or ethnic composition of the block, 184
neighborhood, or other area;185

       (c) An increase in criminal or antisocial behavior in the 186
block, neighborhood, or other area;187

       (d) A decline in the quality of the schools serving the 188
block, neighborhood, or other area.189

       (11) Deny any person access to or membership or participation 190
in any multiple-listing service, real estate brokers' 191
organization, or other service, organization, or facility relating 192
to the business of selling or renting housing accommodations, or 193
discriminate against any person in the terms or conditions of that 194
access, membership, or participation, on account of race, color, 195
religion, sex, military status, familial status, national origin, 196
disability, or ancestry;197

       (12) Coerce, intimidate, threaten, or interfere with any 198
person in the exercise or enjoyment of, or on account of that 199
person's having exercised or enjoyed or having aided or encouraged 200
any other person in the exercise or enjoyment of, any right 201
granted or protected by division (H) of this section;202

       (13) Discourage or attempt to discourage the purchase by a 203
prospective purchaser of housing accommodations, by representing 204
that any block, neighborhood, or other area has undergone or might 205
undergo a change with respect to its religious, racial, sexual, 206
military status, familial status, or ethnic composition;207

       (14) Refuse to sell, transfer, assign, rent, lease, sublease, 208
or finance, or otherwise deny or withhold, a burial lot from any 209
person because of the race, color, sex, military status, familial 210
status, age, ancestry, disability, or national origin of any 211
prospective owner or user of the lot;212

       (15) Discriminate in the sale or rental of, or otherwise make 213
unavailable or deny, housing accommodations to any buyer or renter 214
because of a disability of any of the following:215

       (a) The buyer or renter;216

       (b) A person residing in or intending to reside in the 217
housing accommodations after they are sold, rented, or made 218
available;219

       (c) Any individual associated with the person described in 220
division (H)(15)(b) of this section.221

       (16) Discriminate in the terms, conditions, or privileges of 222
the sale or rental of housing accommodations to any person or in 223
the provision of services or facilities to any person in 224
connection with the housing accommodations because of a disability 225
of any of the following:226

       (a) That person;227

       (b) A person residing in or intending to reside in the 228
housing accommodations after they are sold, rented, or made 229
available;230

       (c) Any individual associated with the person described in 231
division (H)(16)(b) of this section.232

       (17) Except as otherwise provided in division (H)(17) of this 233
section, make an inquiry to determine whether an applicant for the 234
sale or rental of housing accommodations, a person residing in or 235
intending to reside in the housing accommodations after they are 236
sold, rented, or made available, or any individual associated with 237
that person has a disability, or make an inquiry to determine the 238
nature or severity of a disability of the applicant or such a 239
person or individual. The following inquiries may be made of all 240
applicants for the sale or rental of housing accommodations, 241
regardless of whether they have disabilities:242

       (a) An inquiry into an applicant's ability to meet the 243
requirements of ownership or tenancy;244

       (b) An inquiry to determine whether an applicant is qualified 245
for housing accommodations available only to persons with 246
disabilities or persons with a particular type of disability;247

       (c) An inquiry to determine whether an applicant is qualified 248
for a priority available to persons with disabilities or persons 249
with a particular type of disability;250

       (d) An inquiry to determine whether an applicant currently 251
uses a controlled substance in violation of section 2925.11 of the 252
Revised Code or a substantively comparable municipal ordinance;253

       (e) An inquiry to determine whether an applicant at any time 254
has been convicted of or pleaded guilty to any offense, an element 255
of which is the illegal sale, offer to sell, cultivation, 256
manufacture, other production, shipment, transportation, delivery, 257
or other distribution of a controlled substance.258

       (18)(a) Refuse to permit, at the expense of a person with a 259
disability, reasonable modifications of existing housing 260
accommodations that are occupied or to be occupied by the person 261
with a disability, if the modifications may be necessary to afford 262
the person with a disability full enjoyment of the housing 263
accommodations. This division does not preclude a landlord of 264
housing accommodations that are rented or to be rented to a 265
disabled tenant from conditioning permission for a proposed 266
modification upon the disabled tenant's doing one or more of the 267
following:268

       (i) Providing a reasonable description of the proposed 269
modification and reasonable assurances that the proposed 270
modification will be made in a workerlike manner and that any 271
required building permits will be obtained prior to the 272
commencement of the proposed modification;273

       (ii) Agreeing to restore at the end of the tenancy the 274
interior of the housing accommodations to the condition they were 275
in prior to the proposed modification, but subject to reasonable 276
wear and tear during the period of occupancy, if it is reasonable 277
for the landlord to condition permission for the proposed 278
modification upon the agreement;279

       (iii) Paying into an interest-bearing escrow account that is 280
in the landlord's name, over a reasonable period of time, a 281
reasonable amount of money not to exceed the projected costs at 282
the end of the tenancy of the restoration of the interior of the 283
housing accommodations to the condition they were in prior to the 284
proposed modification, but subject to reasonable wear and tear 285
during the period of occupancy, if the landlord finds the account 286
reasonably necessary to ensure the availability of funds for the 287
restoration work. The interest earned in connection with an escrow 288
account described in this division shall accrue to the benefit of 289
the disabled tenant who makes payments into the account.290

       (b) A landlord shall not condition permission for a proposed 291
modification upon a disabled tenant's payment of a security 292
deposit that exceeds the customarily required security deposit of 293
all tenants of the particular housing accommodations.294

       (19) Refuse to make reasonable accommodations in rules, 295
policies, practices, or services when necessary to afford a person 296
with a disability equal opportunity to use and enjoy a dwelling 297
unit, including associated public and common use areas;298

       (20) Fail to comply with the standards and rules adopted 299
under division (A) of section 3781.111 of the Revised Code;300

       (21) Discriminate against any person in the selling, 301
brokering, or appraising of real property because of race, color, 302
religion, sex, military status, familial status, ancestry, 303
disability, or national origin;304

       (22) Fail to design and construct covered multifamily 305
dwellings for first occupancy on or after June 30, 1992, in 306
accordance with the following conditions:307

       (a) The dwellings shall have at least one building entrance 308
on an accessible route, unless it is impractical to do so because 309
of the terrain or unusual characteristics of the site.310

       (b) With respect to dwellings that have a building entrance 311
on an accessible route, all of the following apply:312

       (i) The public use areas and common use areas of the 313
dwellings shall be readily accessible to and usable by persons 314
with a disability.315

       (ii) All the doors designed to allow passage into and within 316
all premises shall be sufficiently wide to allow passage by 317
persons with a disability who are in wheelchairs.318

       (iii) All premises within covered multifamily dwelling units 319
shall contain an accessible route into and through the dwelling; 320
all light switches, electrical outlets, thermostats, and other 321
environmental controls within such units shall be in accessible 322
locations; the bathroom walls within such units shall contain 323
reinforcements to allow later installation of grab bars; and the 324
kitchens and bathrooms within such units shall be designed and 325
constructed in a manner that enables an individual in a wheelchair 326
to maneuver about such rooms.327

       For purposes of division (H)(22) of this section, "covered 328
multifamily dwellings" means buildings consisting of four or more 329
units if such buildings have one or more elevators and ground 330
floor units in other buildings consisting of four or more units.331

       (I) For any person to discriminate in any manner against any 332
other person because that person has opposed any unlawful 333
discriminatory practice defined in this section or because that 334
person has made a charge, testified, assisted, or participated in 335
any manner in any investigation, proceeding, or hearing under 336
sections 4112.01 to 4112.07 of the Revised Code.337

       (J) For any person to aid, abet, incite, compel, or coerce 338
the doing of any act declared by this section to be an unlawful 339
discriminatory practice, to obstruct or prevent any person from 340
complying with this chapter or any order issued under it, or to 341
attempt directly or indirectly to commit any act declared by this 342
section to be an unlawful discriminatory practice.343

       (K)(1) For any employer, employment agency, personnel 344
placement service, or labor organization to recklessly do any of 345
the following:346

       (a) Ask or require an applicant or employee to disclose 347
usernames or passwords associated with a private electronic 348
account of the applicant or employee;349

       (b) Ask or require an applicant or employee to provide the 350
employer, employment agency, personnel placement service, or labor 351
organization with access to a private electronic account of the 352
applicant or employee;353

       (c) Discharge, discipline, threaten to discharge or 354
discipline, or otherwise penalize an employee if the employee 355
refuses to disclose usernames or passwords associated with a 356
private electronic account of the employee, or if the employee 357
refuses to provide the employer, employment agency, personnel 358
placement service, or labor organization with access to a private 359
electronic account of the employee;360

        (d) Fail or refuse to hire an applicant for employment 361
because the applicant refuses to disclose usernames or passwords 362
associated with a private electronic account of the applicant, or 363
because the applicant refuses to provide the employer, employment 364
agency, personnel placement service, or labor organization with 365
access to a private electronic account of the employee. 366

       (2) Division (K)(1) of this section shall not be construed to 367
prohibit an employer, employment agency, personnel placement 368
service, or labor organization from monitoring the electronic 369
accounts of employees or applicants on the electronic mail or 370
internet system of the employer, employment agency, personnel 371
placement service, or labor organization.372

       (3) For purposes of this division:373

       (a) "Private electronic account" means a collection of 374
electronically stored private information regarding an individual, 375
including such collections stored on social media internet web 376
sites, in electronic mail, and on electronic devices.377

       (b) "Social media internet web site" means an internet web 378
site that allows individuals to do all of the following:379

       (i) Construct a public or semipublic profile within a bounded 380
system created by the service;381

       (ii) Create a list of other users with whom the individual 382
shares a connection within the system;383

       (iii) View and navigate the list of users with whom the 384
individual shares a connection and those lists of users made by 385
others within the system.386

       (L)(1) Nothing in division (H) of this section shall bar any 387
religious or denominational institution or organization, or any 388
nonprofit charitable or educational organization that is operated, 389
supervised, or controlled by or in connection with a religious 390
organization, from limiting the sale, rental, or occupancy of 391
housing accommodations that it owns or operates for other than a 392
commercial purpose to persons of the same religion, or from giving 393
preference in the sale, rental, or occupancy of such housing 394
accommodations to persons of the same religion, unless membership 395
in the religion is restricted on account of race, color, or 396
national origin.397

       (2) Nothing in division (H) of this section shall bar any 398
bona fide private or fraternal organization that, incidental to 399
its primary purpose, owns or operates lodgings for other than a 400
commercial purpose, from limiting the rental or occupancy of the 401
lodgings to its members or from giving preference to its members.402

       (3) Nothing in division (H) of this section limits the 403
applicability of any reasonable local, state, or federal 404
restrictions regarding the maximum number of occupants permitted 405
to occupy housing accommodations. Nothing in that division 406
prohibits the owners or managers of housing accommodations from 407
implementing reasonable occupancy standards based on the number 408
and size of sleeping areas or bedrooms and the overall size of a 409
dwelling unit, provided that the standards are not implemented to 410
circumvent the purposes of this chapter and are formulated, 411
implemented, and interpreted in a manner consistent with this 412
chapter and any applicable local, state, or federal restrictions 413
regarding the maximum number of occupants permitted to occupy 414
housing accommodations.415

       (4) Nothing in division (H) of this section requires that 416
housing accommodations be made available to an individual whose 417
tenancy would constitute a direct threat to the health or safety 418
of other individuals or whose tenancy would result in substantial 419
physical damage to the property of others.420

       (5) Nothing in division (H) of this section pertaining to 421
discrimination on the basis of familial status shall be construed 422
to apply to any of the following:423

       (a) Housing accommodations provided under any state or 424
federal program that have been determined under the "Fair Housing 425
Amendments Act of 1988," 102 Stat. 1623, 42 U.S.C.A. 3607, as 426
amended, to be specifically designed and operated to assist 427
elderly persons;428

       (b) Housing accommodations intended for and solely occupied 429
by persons who are sixty-two years of age or older;430

       (c) Housing accommodations intended and operated for 431
occupancy by at least one person who is fifty-five years of age or 432
older per unit, as determined under the "Fair Housing Amendments 433
Act of 1988," 102 Stat. 1623, 42 U.S.C.A. 3607, as amended.434

       (L)(M) Nothing in divisions (A) to (E) of this section shall 435
be construed to require a person with a disability to be employed 436
or trained under circumstances that would significantly increase 437
the occupational hazards affecting either the person with a 438
disability, other employees, the general public, or the facilities 439
in which the work is to be performed, or to require the employment 440
or training of a person with a disability in a job that requires 441
the person with a disability routinely to undertake any task, the 442
performance of which is substantially and inherently impaired by 443
the person's disability.444

       (M)(N) Nothing in divisions (H)(1) to (18) of this section 445
shall be construed to require any person selling or renting 446
property to modify the property in any way or to exercise a higher 447
degree of care for a person with a disability, to relieve any 448
person with a disability of any obligation generally imposed on 449
all persons regardless of disability in a written lease, rental 450
agreement, or contract of purchase or sale, or to forbid 451
distinctions based on the inability to fulfill the terms and 452
conditions, including financial obligations, of the lease, 453
agreement, or contract.454

       (N)(O) An aggrieved individual may enforce the individual's 455
rights relative to discrimination on the basis of age as provided 456
for in this section by instituting a civil action, within one 457
hundred eighty days after the alleged unlawful discriminatory 458
practice occurred, in any court with jurisdiction for any legal or 459
equitable relief that will effectuate the individual's rights.460

       A person who files a civil action under this division is 461
barred, with respect to the practices complained of, from 462
instituting a civil action under section 4112.14 of the Revised 463
Code and from filing a charge with the commission under section 464
4112.05 of the Revised Code.465

       (O)(P) With regard to age, it shall not be an unlawful 466
discriminatory practice and it shall not constitute a violation of 467
division (A) of section 4112.14 of the Revised Code for any 468
employer, employment agency, joint labor-management committee 469
controlling apprenticeship training programs, or labor 470
organization to do any of the following:471

       (1) Establish bona fide employment qualifications reasonably 472
related to the particular business or occupation that may include 473
standards for skill, aptitude, physical capability, intelligence, 474
education, maturation, and experience;475

       (2) Observe the terms of a bona fide seniority system or any 476
bona fide employee benefit plan, including, but not limited to, a 477
retirement, pension, or insurance plan, that is not a subterfuge 478
to evade the purposes of this section. However, no such employee 479
benefit plan shall excuse the failure to hire any individual, and 480
no such seniority system or employee benefit plan shall require or 481
permit the involuntary retirement of any individual, because of 482
the individual's age except as provided for in the "Age 483
Discrimination in Employment Act Amendment of 1978," 92 Stat. 189, 484
29 U.S.C.A. 623, as amended by the "Age Discrimination in 485
Employment Act Amendments of 1986," 100 Stat. 3342, 29 U.S.C.A. 486
623, as amended.487

       (3) Retire an employee who has attained sixty-five years of 488
age who, for the two-year period immediately before retirement, is 489
employed in a bona fide executive or a high policymaking position, 490
if the employee is entitled to an immediate nonforfeitable annual 491
retirement benefit from a pension, profit-sharing, savings, or 492
deferred compensation plan, or any combination of those plans, of 493
the employer of the employee, which equals, in the aggregate, at 494
least forty-four thousand dollars, in accordance with the 495
conditions of the "Age Discrimination in Employment Act Amendment 496
of 1978," 92 Stat. 189, 29 U.S.C.A. 631, as amended by the "Age 497
Discrimination in Employment Act Amendments of 1986," 100 Stat. 498
3342, 29 U.S.C.A. 631, as amended;499

       (4) Observe the terms of any bona fide apprenticeship program 500
if the program is registered with the Ohio apprenticeship council 501
pursuant to sections 4139.01 to 4139.06 of the Revised Code and is 502
approved by the federal committee on apprenticeship of the United 503
States department of labor.504

       (P)(Q) Nothing in this chapter prohibiting age discrimination 505
and nothing in division (A) of section 4112.14 of the Revised Code 506
shall be construed to prohibit the following:507

       (1) The designation of uniform age the attainment of which is 508
necessary for public employees to receive pension or other 509
retirement benefits pursuant to Chapter 145., 742., 3307., 3309., 510
or 5505. of the Revised Code;511

       (2) The mandatory retirement of uniformed patrol officers of 512
the state highway patrol as provided in section 5505.16 of the 513
Revised Code;514

       (3) The maximum age requirements for appointment as a patrol 515
officer in the state highway patrol established by section 5503.01 516
of the Revised Code;517

       (4) The maximum age requirements established for original 518
appointment to a police department or fire department in sections 519
124.41 and 124.42 of the Revised Code;520

       (5) Any maximum age not in conflict with federal law that may 521
be established by a municipal charter, municipal ordinance, or 522
resolution of a board of township trustees for original 523
appointment as a police officer or firefighter;524

       (6) Any mandatory retirement provision not in conflict with 525
federal law of a municipal charter, municipal ordinance, or 526
resolution of a board of township trustees pertaining to police 527
officers and firefighters;528

       (7) Until January 1, 1994, the mandatory retirement of any 529
employee who has attained seventy years of age and who is serving 530
under a contract of unlimited tenure, or similar arrangement 531
providing for unlimited tenure, at an institution of higher 532
education as defined in the "Education Amendments of 1980," 94 533
Stat. 1503, 20 U.S.C.A. 1141(a).534

       (Q)(R)(1)(a) Except as provided in division (Q)(R)(1)(b) of 535
this section, for purposes of divisions (A) to (E) of this 536
section, a disability does not include any physiological disorder 537
or condition, mental or psychological disorder, or disease or 538
condition caused by an illegal use of any controlled substance by 539
an employee, applicant, or other person, if an employer, 540
employment agency, personnel placement service, labor 541
organization, or joint labor-management committee acts on the 542
basis of that illegal use.543

       (b) Division (Q)(R)(1)(a) of this section does not apply to 544
an employee, applicant, or other person who satisfies any of the 545
following:546

       (i) The employee, applicant, or other person has successfully 547
completed a supervised drug rehabilitation program and no longer 548
is engaging in the illegal use of any controlled substance, or the 549
employee, applicant, or other person otherwise successfully has 550
been rehabilitated and no longer is engaging in that illegal use.551

       (ii) The employee, applicant, or other person is 552
participating in a supervised drug rehabilitation program and no 553
longer is engaging in the illegal use of any controlled substance.554

       (iii) The employee, applicant, or other person is erroneously 555
regarded as engaging in the illegal use of any controlled 556
substance, but the employee, applicant, or other person is not 557
engaging in that illegal use.558

       (2) Divisions (A) to (E) of this section do not prohibit an 559
employer, employment agency, personnel placement service, labor 560
organization, or joint labor-management committee from doing any 561
of the following:562

       (a) Adopting or administering reasonable policies or 563
procedures, including, but not limited to, testing for the illegal 564
use of any controlled substance, that are designed to ensure that 565
an individual described in division (Q)(R)(1)(b)(i) or (ii) of 566
this section no longer is engaging in the illegal use of any 567
controlled substance;568

       (b) Prohibiting the illegal use of controlled substances and 569
the use of alcohol at the workplace by all employees;570

       (c) Requiring that employees not be under the influence of 571
alcohol or not be engaged in the illegal use of any controlled 572
substance at the workplace;573

       (d) Requiring that employees behave in conformance with the 574
requirements established under "The Drug-Free Workplace Act of 575
1988," 102 Stat. 4304, 41 U.S.C.A. 701, as amended;576

       (e) Holding an employee who engages in the illegal use of any 577
controlled substance or who is an alcoholic to the same 578
qualification standards for employment or job performance, and the 579
same behavior, to which the employer, employment agency, personnel 580
placement service, labor organization, or joint labor-management 581
committee holds other employees, even if any unsatisfactory 582
performance or behavior is related to an employee's illegal use of 583
a controlled substance or alcoholism;584

       (f) Exercising other authority recognized in the "Americans 585
with Disabilities Act of 1990," 104 Stat. 327, 42 U.S.C.A. 12101, 586
as amended, including, but not limited to, requiring employees to 587
comply with any applicable federal standards.588

       (3) For purposes of this chapter, a test to determine the 589
illegal use of any controlled substance does not include a medical 590
examination.591

       (4) Division (Q)(R) of this section does not encourage, 592
prohibit, or authorize, and shall not be construed as encouraging, 593
prohibiting, or authorizing, the conduct of testing for the 594
illegal use of any controlled substance by employees, applicants, 595
or other persons, or the making of employment decisions based on 596
the results of that type of testing.597

       Sec. 4112.05.  (A) The commission, as provided in this 598
section, shall prevent any person from engaging in unlawful 599
discriminatory practices, provided that, before instituting the 600
formal hearing authorized by division (B) of this section, it 601
shall attempt, by informal methods of conference, conciliation, 602
and persuasion, to induce compliance with this chapter.603

       (B)(1) Any person may file a charge with the commission 604
alleging that another person has engaged or is engaging in an 605
unlawful discriminatory practice. In the case of a charge alleging 606
an unlawful discriminatory practice described in division (A), 607
(B), (C), (D), (E), (F), (G), (I), or (J), or (K) of section 608
4112.02 or in section 4112.021 or 4112.022 of the Revised Code, 609
the charge shall be in writing and under oath and shall be filed 610
with the commission within six months after the alleged unlawful 611
discriminatory practice was committed. In the case of a charge 612
alleging an unlawful discriminatory practice described in division 613
(H) of section 4112.02 of the Revised Code, the charge shall be in 614
writing and under oath and shall be filed with the commission 615
within one year after the alleged unlawful discriminatory practice 616
was committed.617

       (2) Upon receiving a charge, the commission may initiate a 618
preliminary investigation to determine whether it is probable that 619
an unlawful discriminatory practice has been or is being engaged 620
in. The commission also may conduct, upon its own initiative and 621
independent of the filing of any charges, a preliminary 622
investigation relating to any of the unlawful discriminatory 623
practices described in division (A), (B), (C), (D), (E), (F), (I), 624
or (J), or (K) of section 4112.02 or in section 4112.021 or 625
4112.022 of the Revised Code. Prior to a notification of a 626
complainant under division (B)(4) of this section or prior to the 627
commencement of informal methods of conference, conciliation, and 628
persuasion under that division, the members of the commission and 629
the officers and employees of the commission shall not make public 630
in any manner and shall retain as confidential all information 631
that was obtained as a result of or that otherwise pertains to a 632
preliminary investigation other than one described in division 633
(B)(3) of this section.634

       (3)(a) Unless it is impracticable to do so and subject to its 635
authority under division (B)(3)(d) of this section, the commission 636
shall complete a preliminary investigation of a charge filed 637
pursuant to division (B)(1) of this section that alleges an 638
unlawful discriminatory practice described in division (H) of 639
section 4112.02 of the Revised Code, and shall take one of the 640
following actions, within one hundred days after the filing of the 641
charge:642

       (i) Notify the complainant and the respondent that it is not 643
probable that an unlawful discriminatory practice described in 644
division (H) of section 4112.02 of the Revised Code has been or is 645
being engaged in and that the commission will not issue a 646
complaint in the matter;647

       (ii) Initiate a complaint and schedule it for informal 648
methods of conference, conciliation, and persuasion;649

       (iii) Initiate a complaint and refer it to the attorney 650
general with a recommendation to seek a temporary or permanent 651
injunction or a temporary restraining order. If this action is 652
taken, the attorney general shall apply, as expeditiously as 653
possible after receipt of the complaint, to the court of common 654
pleas of the county in which the unlawful discriminatory practice 655
allegedly occurred for the appropriate injunction or order, and 656
the court shall hear and determine the application as 657
expeditiously as possible.658

       (b) If it is not practicable to comply with the requirements 659
of division (B)(3)(a) of this section within the one-hundred-day 660
period described in that division, the commission shall notify the 661
complainant and the respondent in writing of the reasons for the 662
noncompliance.663

       (c) Prior to the issuance of a complaint under division 664
(B)(3)(a)(ii) or (iii) of this section or prior to a notification 665
of the complainant and the respondent under division (B)(3)(a)(i) 666
of this section, the members of the commission and the officers 667
and employees of the commission shall not make public in any 668
manner and shall retain as confidential all information that was 669
obtained as a result of or that otherwise pertains to a 670
preliminary investigation of a charge filed pursuant to division 671
(B)(1) of this section that alleges an unlawful discriminatory 672
practice described in division (H) of section 4112.05 of the 673
Revised Code.674

       (d) Notwithstanding the types of action described in 675
divisions (B)(3)(a)(ii) and (iii) of this section, prior to the 676
issuance of a complaint or the referral of a complaint to the 677
attorney general and prior to endeavoring to eliminate an unlawful 678
discriminatory practice described in division (H) of section 679
4112.02 of the Revised Code by informal methods of conference, 680
conciliation, and persuasion, the commission may seek a temporary 681
or permanent injunction or a temporary restraining order in the 682
court of common pleas of the county in which the unlawful 683
discriminatory practice allegedly occurred.684

       (4) If the commission determines after a preliminary 685
investigation other than one described in division (B)(3) of this 686
section that it is not probable that an unlawful discriminatory 687
practice has been or is being engaged in, it shall notify any 688
complainant under division (B)(1) of this section that it has so 689
determined and that it will not issue a complaint in the matter. 690
If the commission determines after a preliminary investigation 691
other than the one described in division (B)(3) of this section 692
that it is probable that an unlawful discriminatory practice has 693
been or is being engaged in, it shall endeavor to eliminate the 694
practice by informal methods of conference, conciliation, and 695
persuasion.696

       (5) Nothing said or done during informal methods of 697
conference, conciliation, and persuasion under this section shall 698
be disclosed by any member of the commission or its staff or be 699
used as evidence in any subsequent hearing or other proceeding. 700
If, after a preliminary investigation and the use of informal 701
methods of conference, conciliation, and persuasion under this 702
section, the commission is satisfied that any unlawful 703
discriminatory practice will be eliminated, it may treat the 704
charge involved as being conciliated and enter that disposition on 705
the records of the commission. If the commission fails to effect 706
the elimination of an unlawful discriminatory practice by informal 707
methods of conference, conciliation, and persuasion under this 708
section and to obtain voluntary compliance with this chapter, the 709
commission shall issue and cause to be served upon any person, 710
including the respondent against whom a complainant has filed a 711
charge pursuant to division (B)(1) of this section, a complaint 712
stating the charges involved and containing a notice of an 713
opportunity for a hearing before the commission, a member of the 714
commission, or a hearing examiner at a place that is stated in the 715
notice and that is located within the county in which the alleged 716
unlawful discriminatory practice has occurred or is occurring or 717
in which the respondent resides or transacts business. The hearing 718
shall be held not less than thirty days after the service of the 719
complaint upon the complainant, the aggrieved persons other than 720
the complainant on whose behalf the complaint is issued, and the 721
respondent, unless the complainant, an aggrieved person, or the 722
respondent elects to proceed under division (A)(2) of section 723
4112.051 of the Revised Code when that division is applicable. If 724
a complaint pertains to an alleged unlawful discriminatory 725
practice described in division (H) of section 4112.02 of the 726
Revised Code, the complaint shall notify the complainant, an 727
aggrieved person, and the respondent of the right of the 728
complainant, an aggrieved person, or the respondent to elect to 729
proceed with the administrative hearing process under this section 730
or to proceed under division (A)(2) of section 4112.051 of the 731
Revised Code.732

       (6) The attorney general shall represent the commission at 733
any hearing held pursuant to division (B)(5) of this section and 734
shall present the evidence in support of the complaint.735

       (7) Any complaint issued pursuant to division (B)(5) of this 736
section after the filing of a charge under division (B)(1) of this 737
section shall be so issued within one year after the complainant 738
filed the charge with respect to an alleged unlawful 739
discriminatory practice.740

       (C) Any complaint issued pursuant to division (B) of this 741
section may be amended by the commission, a member of the 742
commission, or the hearing examiner conducting a hearing under 743
division (B) of this section, at any time prior to or during the 744
hearing. The respondent has the right to file an answer or an 745
amended answer to the original and amended complaints and to 746
appear at the hearing in person, by attorney, or otherwise to 747
examine and cross-examine witnesses.748

       (D) The complainant shall be a party to a hearing under 749
division (B) of this section, and any person who is an 750
indispensable party to a complete determination or settlement of a 751
question involved in the hearing shall be joined. Any aggrieved 752
person who has or claims an interest in the subject of the hearing 753
and in obtaining or preventing relief against the unlawful 754
discriminatory practices complained of shall be permitted to 755
appear only for the presentation of oral or written arguments, to 756
present evidence, perform direct and cross-examination, and be 757
represented by counsel. The commission shall adopt rules, in 758
accordance with Chapter 119. of the Revised Code governing the 759
authority granted under this division.760

       (E) In any hearing under division (B) of this section, the 761
commission, a member of the commission, or the hearing examiner 762
shall not be bound by the Rules of Evidence but, in ascertaining 763
the practices followed by the respondent, shall take into account 764
all reliable, probative, and substantial statistical or other 765
evidence produced at the hearing that may tend to prove the 766
existence of a predetermined pattern of employment or membership, 767
provided that nothing contained in this section shall be construed 768
to authorize or require any person to observe the proportion that 769
persons of any race, color, religion, sex, military status, 770
familial status, national origin, disability, age, or ancestry 771
bear to the total population or in accordance with any criterion 772
other than the individual qualifications of the applicant.773

       (F) The testimony taken at a hearing under division (B) of 774
this section shall be under oath and shall be reduced to writing 775
and filed with the commission. Thereafter, in its discretion, the 776
commission, upon the service of a notice upon the complainant and 777
the respondent that indicates an opportunity to be present, may 778
take further testimony or hear argument.779

       (G)(1) If, upon all reliable, probative, and substantial 780
evidence presented at a hearing under division (B) of this 781
section, the commission determines that the respondent has engaged 782
in, or is engaging in, any unlawful discriminatory practice, 783
whether against the complainant or others, the commission shall 784
state its findings of fact and conclusions of law and shall issue 785
and, subject to the provisions of Chapter 119. of the Revised 786
Code, cause to be served on the respondent an order requiring the 787
respondent to cease and desist from the unlawful discriminatory 788
practice, requiring the respondent to take any further affirmative 789
or other action that will effectuate the purposes of this chapter, 790
including, but not limited to, hiring, reinstatement, or upgrading 791
of employees with or without back pay, or admission or restoration 792
to union membership, and requiring the respondent to report to the 793
commission the manner of compliance. If the commission directs 794
payment of back pay, it shall make allowance for interim earnings. 795
If it finds a violation of division (K) of section 4112.02 of the 796
Revised Code, the commission additionally shall require the 797
respondent to pay the fine required under division (B) of section 798
4112.99 of the Revised Code. If it finds a violation of division 799
(H) of section 4112.02 of the Revised Code, the commission 800
additionally shall require the respondent to pay actual damages 801
and reasonable attorney's fees, and may award to the complainant 802
punitive damages as follows:803

       (a) If division (G)(1)(b) or (c) of this section does not 804
apply, punitive damages in an amount not to exceed ten thousand 805
dollars;806

       (b) If division (G)(1)(c) of this section does not apply and 807
if the respondent has been determined by a final order of the 808
commission or by a final judgment of a court to have committed one 809
violation of division (H) of section 4112.02 of the Revised Code 810
during the five-year period immediately preceding the date on 811
which a complaint was issued pursuant to division (B) of this 812
section, punitive damages in an amount not to exceed twenty-five 813
thousand dollars;814

       (c) If the respondent has been determined by a final order of 815
the commission or by a final judgment of a court to have committed 816
two or more violations of division (H) of section 4112.02 of the 817
Revised Code during the seven-year period immediately preceding 818
the date on which a complaint was issued pursuant to division (B) 819
of this section, punitive damages in an amount not to exceed fifty 820
thousand dollars.821

       (2) Upon the submission of reports of compliance, the 822
commission may issue a declaratory order stating that the 823
respondent has ceased to engage in particular unlawful 824
discriminatory practices.825

       (H) If the commission finds that no probable cause exists for 826
crediting charges of unlawful discriminatory practices or if, upon 827
all the evidence presented at a hearing under division (B) of this 828
section on a charge, the commission finds that a respondent has 829
not engaged in any unlawful discriminatory practice against the 830
complainant or others, it shall state its findings of fact and 831
shall issue and cause to be served on the complainant an order 832
dismissing the complaint as to the respondent. A copy of the order 833
shall be delivered in all cases to the attorney general and any 834
other public officers whom the commission considers proper.835

       (I) Until the time period for appeal set forth in division 836
(H) of section 4112.06 of the Revised Code expires, the 837
commission, subject to the provisions of Chapter 119. of the 838
Revised Code, at any time, upon reasonable notice, and in the 839
manner it considers proper, may modify or set aside, in whole or 840
in part, any finding or order made by it under this section.841

       Sec. 4112.08.  This chapter shall be construed liberally for 842
the accomplishment of its purposes, and any law inconsistent with 843
any provision of this chapter shall not apply. Nothing contained 844
in this chapter shall be considered to repeal any of the 845
provisions of any law of this state relating to discrimination 846
because of race, color, religion, sex, military status, familial 847
status, disability, national origin, age, or ancestry, except that 848
any person filing a charge under division (B)(1) of section 849
4112.05 of the Revised Code, with respect to the unlawful 850
discriminatory practices complained of, is barred from instituting 851
a civil action under section 4112.14 or division (N)(O) of section 852
4112.02 of the Revised Code.853

       Sec. 4112.14.  (A) No employer shall discriminate in any job 854
opening against any applicant or discharge without just cause any 855
employee aged forty or older who is physically able to perform the 856
duties and otherwise meets the established requirements of the job 857
and laws pertaining to the relationship between employer and 858
employee.859

       (B) Any person aged forty or older who is discriminated 860
against in any job opening or discharged without just cause by an 861
employer in violation of division (A) of this section may 862
institute a civil action against the employer in a court of 863
competent jurisdiction. If the court finds that an employer has 864
discriminated on the basis of age, the court shall order an 865
appropriate remedy which shall include reimbursement to the 866
applicant or employee for the costs, including reasonable 867
attorney's fees, of the action, or to reinstate the employee in 868
the employee's former position with compensation for lost wages 869
and any lost fringe benefits from the date of the illegal 870
discharge and to reimburse the employee for the costs, including 871
reasonable attorney's fees, of the action. The remedies available 872
under this section are coexistent with remedies available pursuant 873
to sections 4112.01 to 4112.11 of the Revised Code; except that 874
any person instituting a civil action under this section is, with 875
respect to the practices complained of, thereby barred from 876
instituting a civil action under division (N)(O) of section 877
4112.02 of the Revised Code or from filing a charge with the Ohio 878
civil rights commission under section 4112.05 of the Revised Code.879

       (C) The cause of action described in division (B) of this 880
section and any remedies available pursuant to sections 4112.01 to 881
4112.11 of the Revised Code shall not be available in the case of 882
discharges where the employee has available to the employee the 883
opportunity to arbitrate the discharge or where a discharge has 884
been arbitrated and has been found to be for just cause.885

       Sec. 4112.15.  There is hereby created in the state treasury 886
the civil rights commission general reimbursement fund, which 887
shall be used to pay operating costs of the commission. All 888
amounts received by the commission, and all amounts awarded by a 889
court to the commission, for attorney's fees, court costs, expert 890
witness fees, and other litigation expenses shall be paid into the 891
state treasury to the credit of the fund. All amounts received by 892
the commission for copies of commission documents and for other 893
goods and services furnished by the commission shall be paid into 894
the state treasury to the credit of the fund. All collected fines 895
charged under division (B) of section 4112.99 of the Revised Code 896
shall be paid into the state treasury to the credit of the fund.897

       Sec. 4112.99. (A) Whoever violates this chapter is subject 898
to a civil action for damages, injunctive relief, or any other 899
appropriate relief.900

       (B) In addition to any damages and relief that may be 901
available in division (A) of this section, whoever violates 902
division (K) of section 4112.02 of the Revised Code shall be 903
subject to a fine in the amount of up to one thousand dollars for 904
the first violation of that division, and up to two thousand 905
dollars for each subsequent violation.906

       Section 2.  That existing sections 4112.02, 4112.05, 4112.08, 907
4112.14, 4112.15, and 4112.99 of the Revised Code are hereby 908
repealed.909