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H. B. No. 456 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Antonio, Bishoff, Boyd, Clyde, Driehaus, Fedor, Heard, Phillips, Reece, Ramos, Hagan, R., Foley, Stinziano, Barborak, Sheehy, Lundy
A BILL
To amend section 4112.05 of the Revised Code to
clarify that a discriminatory compensation
decision that is unlawful under the Civil Rights
Laws occurs each time compensation is paid
pursuant to that decision.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 4112.05 of the Revised Code be
amended to read as follows:
Sec. 4112.05. (A) The commission, as provided in this
section, shall prevent any person from engaging in unlawful
discriminatory practices, provided that, before instituting the
formal hearing authorized by division (B) of this section, it
shall attempt, by informal methods of conference, conciliation,
and persuasion, to induce compliance with this chapter.
(B)(1) Any person may file a charge with the commission
alleging that another person has engaged or is engaging in an
unlawful discriminatory practice. In the case of a charge alleging
an unlawful discriminatory practice described in division (A),
(B), (C), (D), (E), (F), (G), (I), or (J) of section 4112.02 or in
section 4112.021 or 4112.022 of the Revised Code, the charge shall
be in writing and under oath and shall be filed with the
commission within six months after the alleged unlawful
discriminatory practice was committed. In the case of a charge
alleging an unlawful discriminatory practice described in division
(H) of section 4112.02 of the Revised Code, the charge shall be in
writing and under oath and shall be filed with the commission
within one year after the alleged unlawful discriminatory practice
was committed.
For the purposes of division (B)(1) of this section, an
unlawful discriminatory practice in compensation is committed when
one of the following occurs:
(a) A discriminatory compensation decision or other practice
is adopted;
(b) An individual becomes subject to a discriminatory
compensation decision or other practice;
(c) An individual is affected by application of a
discriminatory compensation decision or other practice, including
each time wages, benefits, or other compensation is paid,
resulting in whole or in part from a discriminatory compensation
decision or other practice.
(2) Upon receiving a charge, the commission may initiate a
preliminary investigation to determine whether it is probable that
an unlawful discriminatory practice has been or is being engaged
in. The commission also may conduct, upon its own initiative and
independent of the filing of any charges, a preliminary
investigation relating to any of the unlawful discriminatory
practices described in division (A), (B), (C), (D), (E), (F), (I),
or (J) of section 4112.02 or in section 4112.021 or 4112.022 of
the Revised Code. Prior to a notification of a complainant under
division (B)(4) of this section or prior to the commencement of
informal methods of conference, conciliation, and persuasion under
that division, the members of the commission and the officers and
employees of the commission shall not make public in any manner
and shall retain as confidential all information that was obtained
as a result of or that otherwise pertains to a preliminary
investigation other than one described in division (B)(3) of this
section.
(3)(a) Unless it is impracticable to do so and subject to its
authority under division (B)(3)(d) of this section, the commission
shall complete a preliminary investigation of a charge filed
pursuant to division (B)(1) of this section that alleges an
unlawful discriminatory practice described in division (H) of
section 4112.02 of the Revised Code, and shall take one of the
following actions, within one hundred days after the filing of the
charge:
(i) Notify the complainant and the respondent that it is not
probable that an unlawful discriminatory practice described in
division (H) of section 4112.02 of the Revised Code has been or is
being engaged in and that the commission will not issue a
complaint in the matter;
(ii) Initiate a complaint and schedule it for informal
methods of conference, conciliation, and persuasion;
(iii) Initiate a complaint and refer it to the attorney
general with a recommendation to seek a temporary or permanent
injunction or a temporary restraining order. If this action is
taken, the attorney general shall apply, as expeditiously as
possible after receipt of the complaint, to the court of common
pleas of the county in which the unlawful discriminatory practice
allegedly occurred for the appropriate injunction or order, and
the court shall hear and determine the application as
expeditiously as possible.
(b) If it is not practicable to comply with the requirements
of division (B)(3)(a) of this section within the one-hundred-day
period described in that division, the commission shall notify the
complainant and the respondent in writing of the reasons for the
noncompliance.
(c) Prior to the issuance of a complaint under division
(B)(3)(a)(ii) or (iii) of this section or prior to a notification
of the complainant and the respondent under division (B)(3)(a)(i)
of this section, the members of the commission and the officers
and employees of the commission shall not make public in any
manner and shall retain as confidential all information that was
obtained as a result of or that otherwise pertains to a
preliminary investigation of a charge filed pursuant to division
(B)(1) of this section that alleges an unlawful discriminatory
practice described in division (H) of section 4112.05 of the
Revised Code.
(d) Notwithstanding the types of action described in
divisions (B)(3)(a)(ii) and (iii) of this section, prior to the
issuance of a complaint or the referral of a complaint to the
attorney general and prior to endeavoring to eliminate an unlawful
discriminatory practice described in division (H) of section
4112.02 of the Revised Code by informal methods of conference,
conciliation, and persuasion, the commission may seek a temporary
or permanent injunction or a temporary restraining order in the
court of common pleas of the county in which the unlawful
discriminatory practice allegedly occurred.
(4) If the commission determines after a preliminary
investigation other than one described in division (B)(3) of this
section that it is not probable that an unlawful discriminatory
practice has been or is being engaged in, it shall notify any
complainant under division (B)(1) of this section that it has so
determined and that it will not issue a complaint in the matter.
If the commission determines after a preliminary investigation
other than the one described in division (B)(3) of this section
that it is probable that an unlawful discriminatory practice has
been or is being engaged in, it shall endeavor to eliminate the
practice by informal methods of conference, conciliation, and
persuasion.
(5) Nothing said or done during informal methods of
conference, conciliation, and persuasion under this section shall
be disclosed by any member of the commission or its staff or be
used as evidence in any subsequent hearing or other proceeding.
If, after a preliminary investigation and the use of informal
methods of conference, conciliation, and persuasion under this
section, the commission is satisfied that any unlawful
discriminatory practice will be eliminated, it may treat the
charge involved as being conciliated and enter that disposition on
the records of the commission. If the commission fails to effect
the elimination of an unlawful discriminatory practice by informal
methods of conference, conciliation, and persuasion under this
section and to obtain voluntary compliance with this chapter, the
commission shall issue and cause to be served upon any person,
including the respondent against whom a complainant has filed a
charge pursuant to division (B)(1) of this section, a complaint
stating the charges involved and containing a notice of an
opportunity for a hearing before the commission, a member of the
commission, or a hearing examiner at a place that is stated in the
notice and that is located within the county in which the alleged
unlawful discriminatory practice has occurred or is occurring or
in which the respondent resides or transacts business. The hearing
shall be held not less than thirty days after the service of the
complaint upon the complainant, the aggrieved persons other than
the complainant on whose behalf the complaint is issued, and the
respondent, unless the complainant, an aggrieved person, or the
respondent elects to proceed under division (A)(2) of section
4112.051 of the Revised Code when that division is applicable. If
a complaint pertains to an alleged unlawful discriminatory
practice described in division (H) of section 4112.02 of the
Revised Code, the complaint shall notify the complainant, an
aggrieved person, and the respondent of the right of the
complainant, an aggrieved person, or the respondent to elect to
proceed with the administrative hearing process under this section
or to proceed under division (A)(2) of section 4112.051 of the
Revised Code.
(6) The attorney general shall represent the commission at
any hearing held pursuant to division (B)(5) of this section and
shall present the evidence in support of the complaint.
(7) Any complaint issued pursuant to division (B)(5) of this
section after the filing of a charge under division (B)(1) of this
section shall be so issued within one year after the complainant
filed the charge with respect to an alleged unlawful
discriminatory practice.
(C) Any complaint issued pursuant to division (B) of this
section may be amended by the commission, a member of the
commission, or the hearing examiner conducting a hearing under
division (B) of this section, at any time prior to or during the
hearing. The respondent has the right to file an answer or an
amended answer to the original and amended complaints and to
appear at the hearing in person, by attorney, or otherwise to
examine and cross-examine witnesses.
(D) The complainant shall be a party to a hearing under
division (B) of this section, and any person who is an
indispensable party to a complete determination or settlement of a
question involved in the hearing shall be joined. Any aggrieved
person who has or claims an interest in the subject of the hearing
and in obtaining or preventing relief against the unlawful
discriminatory practices complained of shall be permitted to
appear only for the presentation of oral or written arguments, to
present evidence, perform direct and cross-examination, and be
represented by counsel. The commission shall adopt rules, in
accordance with Chapter 119. of the Revised Code governing the
authority granted under this division.
(E) In any hearing under division (B) of this section, the
commission, a member of the commission, or the hearing examiner
shall not be bound by the Rules of Evidence but, in ascertaining
the practices followed by the respondent, shall take into account
all reliable, probative, and substantial statistical or other
evidence produced at the hearing that may tend to prove the
existence of a predetermined pattern of employment or membership,
provided that nothing contained in this section shall be construed
to authorize or require any person to observe the proportion that
persons of any race, color, religion, sex, military status,
familial status, national origin, disability, age, or ancestry
bear to the total population or in accordance with any criterion
other than the individual qualifications of the applicant.
(F) The testimony taken at a hearing under division (B) of
this section shall be under oath and shall be reduced to writing
and filed with the commission. Thereafter, in its discretion, the
commission, upon the service of a notice upon the complainant and
the respondent that indicates an opportunity to be present, may
take further testimony or hear argument.
(G)(1) If, upon all reliable, probative, and substantial
evidence presented at a hearing under division (B) of this
section, the commission determines that the respondent has engaged
in, or is engaging in, any unlawful discriminatory practice,
whether against the complainant or others, the commission shall
state its findings of fact and conclusions of law and shall issue
and, subject to the provisions of Chapter 119. of the Revised
Code, cause to be served on the respondent an order requiring the
respondent to cease and desist from the unlawful discriminatory
practice, requiring the respondent to take any further affirmative
or other action that will effectuate the purposes of this chapter,
including, but not limited to, hiring, reinstatement, or upgrading
of employees with or without back pay, or admission or restoration
to union membership, and requiring the respondent to report to the
commission the manner of compliance. If the commission directs
payment of back pay, it shall make allowance for interim earnings.
If it finds a violation of division (H) of section 4112.02 of the
Revised Code, the commission additionally shall require the
respondent to pay actual damages and reasonable attorney's fees,
and may award to the complainant punitive damages as follows:
(a) If division (G)(1)(b) or (c) of this section does not
apply, punitive damages in an amount not to exceed ten thousand
dollars;
(b) If division (G)(1)(c) of this section does not apply and
if the respondent has been determined by a final order of the
commission or by a final judgment of a court to have committed one
violation of division (H) of section 4112.02 of the Revised Code
during the five-year period immediately preceding the date on
which a complaint was issued pursuant to division (B) of this
section, punitive damages in an amount not to exceed twenty-five
thousand dollars;
(c) If the respondent has been determined by a final order of
the commission or by a final judgment of a court to have committed
two or more violations of division (H) of section 4112.02 of the
Revised Code during the seven-year period immediately preceding
the date on which a complaint was issued pursuant to division (B)
of this section, punitive damages in an amount not to exceed fifty
thousand dollars.
(2) Upon the submission of reports of compliance, the
commission may issue a declaratory order stating that the
respondent has ceased to engage in particular unlawful
discriminatory practices.
(3) In relation to an unlawful discriminatory practice
relating to compensation, liability may accrue and the complainant
may obtain relief, including recovery of back pay for up to two
years preceding the filing of the charge, if the unlawful
discriminatory practice that occurred during the charge filing
period described in division (B)(1) of this section is similar or
related to an unlawful employment practice with regard to
discrimination in compensation that occurred outside the time for
filing a charge.
(H) If the commission finds that no probable cause exists for
crediting charges of unlawful discriminatory practices or if, upon
all the evidence presented at a hearing under division (B) of this
section on a charge, the commission finds that a respondent has
not engaged in any unlawful discriminatory practice against the
complainant or others, it shall state its findings of fact and
shall issue and cause to be served on the complainant an order
dismissing the complaint as to the respondent. A copy of the order
shall be delivered in all cases to the attorney general and any
other public officers whom the commission considers proper.
(I) Until the time period for appeal set forth in division
(H) of section 4112.06 of the Revised Code expires, the
commission, subject to the provisions of Chapter 119. of the
Revised Code, at any time, upon reasonable notice, and in the
manner it considers proper, may modify or set aside, in whole or
in part, any finding or order made by it under this section.
Section 2. That existing section 4112.05 of the Revised Code
is hereby repealed.
Section 3. (A) The General Assembly hereby determines and
declares that it recognizes and finds all of the following:
(1) The United States Supreme Court in Ledbetter v. Goodyear
Tire & Rubber Co., 550 U.S. 618 (2007), significantly impaired
statutory protections against discrimination in compensation that
Congress established and that have been bedrock principles of
American law for decades. The Ledbetter decision undermined those
statutory protections by unduly restricting the time period in
which victims of discrimination could challenge and recover for
discriminatory compensation decisions or other practices, contrary
to the intent of Congress.
(2) The limitation imposed by the Court on the filing of
discriminatory compensation claims ignored the reality of wage
discrimination and was at odds with the robust application of the
Civil Rights Laws that Congress intended.
(B) The General Assembly hereby declares that, in amending
section 4112.05 of the Revised Code to clarify that a
discriminatory compensation decision that is unlawful under the
Ohio Civil Rights Laws occurs each time compensation is paid
pursuant to that decision, it is the General Assembly's intent to
protect the safety and general welfare of the people of this state
by codifying at the state level the "Lilly Ledbetter Fair Pay Act
of 2009," Pub. Law No. 111-2, 123 Stat. 5. Consequently, the
amendments made by this act are remedial and not punitive in
nature and shall take effect as if enacted on May 28, 2007, and
apply to all claims of discrimination in compensation under
Chapter 4112. of the Revised Code that are pending on or after
that date.
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