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S. B. No. 45 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Senators Brown, Smith, Kearney, Sawyer, Turner
A BILL
To amend sections 4112.02, 4112.05, 4112.08, 4112.14,
4112.15, and 4112.99 of the Revised Code to
prohibit employers, employment agencies, personnel
placement services, and labor organizations from
requiring an applicant or employee to provide
access to private electronic accounts of the
applicant or employee.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4112.02, 4112.05, 4112.08, 4112.14,
4112.15, and 4112.99 of the Revised Code be amended to read as
follows:
Sec. 4112.02. It shall be an unlawful discriminatory
practice:
(A) For any employer, because of the race, color, religion,
sex, military status, national origin, disability, age, or
ancestry of any person, to discharge without just cause, to refuse
to hire, or otherwise to discriminate against that person with
respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to
employment.
(B) For an employment agency or personnel placement service,
because of race, color, religion, sex, military status, national
origin, disability, age, or ancestry, to do any of the following:
(1) Refuse or fail to accept, register, classify properly, or
refer for employment, or otherwise discriminate against any
person;
(2) Comply with a request from an employer for referral of
applicants for employment if the request directly or indirectly
indicates that the employer fails to comply with the provisions of
sections 4112.01 to 4112.07 of the Revised Code.
(C) For any labor organization to do any of the following:
(1) Limit or classify its membership on the basis of race,
color, religion, sex, military status, national origin,
disability, age, or ancestry;
(2) Discriminate against, limit the employment opportunities
of, or otherwise adversely affect the employment status, wages,
hours, or employment conditions of any person as an employee
because of race, color, religion, sex, military status, national
origin, disability, age, or ancestry.
(D) For any employer, labor organization, or joint
labor-management committee controlling apprentice training
programs to discriminate against any person because of race,
color, religion, sex, military status, national origin,
disability, or ancestry in admission to, or employment in, any
program established to provide apprentice training.
(E) Except where based on a bona fide occupational
qualification certified in advance by the commission, for any
employer, employment agency, personnel placement service, or labor
organization, prior to employment or admission to membership, to
do any of the following:
(1) Elicit or attempt to elicit any information concerning
the race, color, religion, sex, military status, national origin,
disability, age, or ancestry of an applicant for employment or
membership;
(2) Make or keep a record of the race, color, religion, sex,
military status, national origin, disability, age, or ancestry of
any applicant for employment or membership;
(3) Use any form of application for employment, or personnel
or membership blank, seeking to elicit information regarding race,
color, religion, sex, military status, national origin,
disability, age, or ancestry; but an employer holding a contract
containing a nondiscrimination clause with the government of the
United States, or any department or agency of that government, may
require an employee or applicant for employment to furnish
documentary proof of United States citizenship and may retain that
proof in the employer's personnel records and may use photographic
or fingerprint identification for security purposes;
(4) Print or publish or cause to be printed or published any
notice or advertisement relating to employment or membership
indicating any preference, limitation, specification, or
discrimination, based upon race, color, religion, sex, military
status, national origin, disability, age, or ancestry;
(5) Announce or follow a policy of denying or limiting,
through a quota system or otherwise, employment or membership
opportunities of any group because of the race, color, religion,
sex, military status, national origin, disability, age, or
ancestry of that group;
(6) Utilize in the recruitment or hiring of persons any
employment agency, personnel placement service, training school or
center, labor organization, or any other employee-referring source
known to discriminate against persons because of their race,
color, religion, sex, military status, national origin,
disability, age, or ancestry.
(F) For any person seeking employment to publish or cause to
be published any advertisement that specifies or in any manner
indicates that person's race, color, religion, sex, military
status, national origin, disability, age, or ancestry, or
expresses a limitation or preference as to the race, color,
religion, sex, military status, national origin, disability, age,
or ancestry of any prospective employer.
(G) For any proprietor or any employee, keeper, or manager of
a place of public accommodation to deny to any person, except for
reasons applicable alike to all persons regardless of race, color,
religion, sex, military status, national origin, disability, age,
or ancestry, the full enjoyment of the accommodations, advantages,
facilities, or privileges of the place of public accommodation.
(H) For any person to do any of the following:
(1) Refuse to sell, transfer, assign, rent, lease, sublease,
or finance housing accommodations, refuse to negotiate for the
sale or rental of housing accommodations, or otherwise deny or
make unavailable housing accommodations because of race, color,
religion, sex, military status, familial status, ancestry,
disability, or national origin;
(2) Represent to any person that housing accommodations are
not available for inspection, sale, or rental, when in fact they
are available, because of race, color, religion, sex, military
status, familial status, ancestry, disability, or national origin;
(3) Discriminate against any person in the making or
purchasing of loans or the provision of other financial assistance
for the acquisition, construction, rehabilitation, repair, or
maintenance of housing accommodations, or any person in the making
or purchasing of loans or the provision of other financial
assistance that is secured by residential real estate, because of
race, color, religion, sex, military status, familial status,
ancestry, disability, or national origin or because of the racial
composition of the neighborhood in which the housing
accommodations are located, provided that the person, whether an
individual, corporation, or association of any type, lends money
as one of the principal aspects or incident to the person's
principal business and not only as a part of the purchase price of
an owner-occupied residence the person is selling nor merely
casually or occasionally to a relative or friend;
(4) Discriminate against any person in the terms or
conditions of selling, transferring, assigning, renting, leasing,
or subleasing any housing accommodations or in furnishing
facilities, services, or privileges in connection with the
ownership, occupancy, or use of any housing accommodations,
including the sale of fire, extended coverage, or homeowners
insurance, because of race, color, religion, sex, military status,
familial status, ancestry, disability, or national origin or
because of the racial composition of the neighborhood in which the
housing accommodations are located;
(5) Discriminate against any person in the terms or
conditions of any loan of money, whether or not secured by
mortgage or otherwise, for the acquisition, construction,
rehabilitation, repair, or maintenance of housing accommodations
because of race, color, religion, sex, military status, familial
status, ancestry, disability, or national origin or because of the
racial composition of the neighborhood in which the housing
accommodations are located;
(6) Refuse to consider without prejudice the combined income
of both husband and wife for the purpose of extending mortgage
credit to a married couple or either member of a married couple;
(7) Print, publish, or circulate any statement or
advertisement, or make or cause to be made any statement or
advertisement, relating to the sale, transfer, assignment, rental,
lease, sublease, or acquisition of any housing accommodations, or
relating to the loan of money, whether or not secured by mortgage
or otherwise, for the acquisition, construction, rehabilitation,
repair, or maintenance of housing accommodations, that indicates
any preference, limitation, specification, or discrimination based
upon race, color, religion, sex, military status, familial status,
ancestry, disability, or national origin, or an intention to make
any such preference, limitation, specification, or discrimination;
(8) Except as otherwise provided in division (H)(8) or (17)
of this section, make any inquiry, elicit any information, make or
keep any record, or use any form of application containing
questions or entries concerning race, color, religion, sex,
military status, familial status, ancestry, disability, or
national origin in connection with the sale or lease of any
housing accommodations or the loan of any money, whether or not
secured by mortgage or otherwise, for the acquisition,
construction, rehabilitation, repair, or maintenance of housing
accommodations. Any person may make inquiries, and make and keep
records, concerning race, color, religion, sex, military status,
familial status, ancestry, disability, or national origin for the
purpose of monitoring compliance with this chapter.
(9) Include in any transfer, rental, or lease of housing
accommodations any restrictive covenant, or honor or exercise, or
attempt to honor or exercise, any restrictive covenant;
(10) Induce or solicit, or attempt to induce or solicit, a
housing accommodations listing, sale, or transaction by
representing that a change has occurred or may occur with respect
to the racial, religious, sexual, military status, familial
status, or ethnic composition of the block, neighborhood, or other
area in which the housing accommodations are located, or induce or
solicit, or attempt to induce or solicit, a housing accommodations
listing, sale, or transaction by representing that the presence or
anticipated presence of persons of any race, color, religion, sex,
military status, familial status, ancestry, disability, or
national origin, in the block, neighborhood, or other area will or
may have results including, but not limited to, the following:
(a) The lowering of property values;
(b) A change in the racial, religious, sexual, military
status, familial status, or ethnic composition of the block,
neighborhood, or other area;
(c) An increase in criminal or antisocial behavior in the
block, neighborhood, or other area;
(d) A decline in the quality of the schools serving the
block, neighborhood, or other area.
(11) Deny any person access to or membership or participation
in any multiple-listing service, real estate brokers'
organization, or other service, organization, or facility relating
to the business of selling or renting housing accommodations, or
discriminate against any person in the terms or conditions of that
access, membership, or participation, on account of race, color,
religion, sex, military status, familial status, national origin,
disability, or ancestry;
(12) Coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of that
person's having exercised or enjoyed or having aided or encouraged
any other person in the exercise or enjoyment of, any right
granted or protected by division (H) of this section;
(13) Discourage or attempt to discourage the purchase by a
prospective purchaser of housing accommodations, by representing
that any block, neighborhood, or other area has undergone or might
undergo a change with respect to its religious, racial, sexual,
military status, familial status, or ethnic composition;
(14) Refuse to sell, transfer, assign, rent, lease, sublease,
or finance, or otherwise deny or withhold, a burial lot from any
person because of the race, color, sex, military status, familial
status, age, ancestry, disability, or national origin of any
prospective owner or user of the lot;
(15) Discriminate in the sale or rental of, or otherwise make
unavailable or deny, housing accommodations to any buyer or renter
because of a disability of any of the following:
(b) A person residing in or intending to reside in the
housing accommodations after they are sold, rented, or made
available;
(c) Any individual associated with the person described in
division (H)(15)(b) of this section.
(16) Discriminate in the terms, conditions, or privileges of
the sale or rental of housing accommodations to any person or in
the provision of services or facilities to any person in
connection with the housing accommodations because of a disability
of any of the following:
(b) A person residing in or intending to reside in the
housing accommodations after they are sold, rented, or made
available;
(c) Any individual associated with the person described in
division (H)(16)(b) of this section.
(17) Except as otherwise provided in division (H)(17) of this
section, make an inquiry to determine whether an applicant for the
sale or rental of housing accommodations, a person residing in or
intending to reside in the housing accommodations after they are
sold, rented, or made available, or any individual associated with
that person has a disability, or make an inquiry to determine the
nature or severity of a disability of the applicant or such a
person or individual. The following inquiries may be made of all
applicants for the sale or rental of housing accommodations,
regardless of whether they have disabilities:
(a) An inquiry into an applicant's ability to meet the
requirements of ownership or tenancy;
(b) An inquiry to determine whether an applicant is qualified
for housing accommodations available only to persons with
disabilities or persons with a particular type of disability;
(c) An inquiry to determine whether an applicant is qualified
for a priority available to persons with disabilities or persons
with a particular type of disability;
(d) An inquiry to determine whether an applicant currently
uses a controlled substance in violation of section 2925.11 of the
Revised Code or a substantively comparable municipal ordinance;
(e) An inquiry to determine whether an applicant at any time
has been convicted of or pleaded guilty to any offense, an element
of which is the illegal sale, offer to sell, cultivation,
manufacture, other production, shipment, transportation, delivery,
or other distribution of a controlled substance.
(18)(a) Refuse to permit, at the expense of a person with a
disability, reasonable modifications of existing housing
accommodations that are occupied or to be occupied by the person
with a disability, if the modifications may be necessary to afford
the person with a disability full enjoyment of the housing
accommodations. This division does not preclude a landlord of
housing accommodations that are rented or to be rented to a
disabled tenant from conditioning permission for a proposed
modification upon the disabled tenant's doing one or more of the
following:
(i) Providing a reasonable description of the proposed
modification and reasonable assurances that the proposed
modification will be made in a workerlike manner and that any
required building permits will be obtained prior to the
commencement of the proposed modification;
(ii) Agreeing to restore at the end of the tenancy the
interior of the housing accommodations to the condition they were
in prior to the proposed modification, but subject to reasonable
wear and tear during the period of occupancy, if it is reasonable
for the landlord to condition permission for the proposed
modification upon the agreement;
(iii) Paying into an interest-bearing escrow account that is
in the landlord's name, over a reasonable period of time, a
reasonable amount of money not to exceed the projected costs at
the end of the tenancy of the restoration of the interior of the
housing accommodations to the condition they were in prior to the
proposed modification, but subject to reasonable wear and tear
during the period of occupancy, if the landlord finds the account
reasonably necessary to ensure the availability of funds for the
restoration work. The interest earned in connection with an escrow
account described in this division shall accrue to the benefit of
the disabled tenant who makes payments into the account.
(b) A landlord shall not condition permission for a proposed
modification upon a disabled tenant's payment of a security
deposit that exceeds the customarily required security deposit of
all tenants of the particular housing accommodations.
(19) Refuse to make reasonable accommodations in rules,
policies, practices, or services when necessary to afford a person
with a disability equal opportunity to use and enjoy a dwelling
unit, including associated public and common use areas;
(20) Fail to comply with the standards and rules adopted
under division (A) of section 3781.111 of the Revised Code;
(21) Discriminate against any person in the selling,
brokering, or appraising of real property because of race, color,
religion, sex, military status, familial status, ancestry,
disability, or national origin;
(22) Fail to design and construct covered multifamily
dwellings for first occupancy on or after June 30, 1992, in
accordance with the following conditions:
(a) The dwellings shall have at least one building entrance
on an accessible route, unless it is impractical to do so because
of the terrain or unusual characteristics of the site.
(b) With respect to dwellings that have a building entrance
on an accessible route, all of the following apply:
(i) The public use areas and common use areas of the
dwellings shall be readily accessible to and usable by persons
with a disability.
(ii) All the doors designed to allow passage into and within
all premises shall be sufficiently wide to allow passage by
persons with a disability who are in wheelchairs.
(iii) All premises within covered multifamily dwelling units
shall contain an accessible route into and through the dwelling;
all light switches, electrical outlets, thermostats, and other
environmental controls within such units shall be in accessible
locations; the bathroom walls within such units shall contain
reinforcements to allow later installation of grab bars; and the
kitchens and bathrooms within such units shall be designed and
constructed in a manner that enables an individual in a wheelchair
to maneuver about such rooms.
For purposes of division (H)(22) of this section, "covered
multifamily dwellings" means buildings consisting of four or more
units if such buildings have one or more elevators and ground
floor units in other buildings consisting of four or more units.
(I) For any person to discriminate in any manner against any
other person because that person has opposed any unlawful
discriminatory practice defined in this section or because that
person has made a charge, testified, assisted, or participated in
any manner in any investigation, proceeding, or hearing under
sections 4112.01 to 4112.07 of the Revised Code.
(J) For any person to aid, abet, incite, compel, or coerce
the doing of any act declared by this section to be an unlawful
discriminatory practice, to obstruct or prevent any person from
complying with this chapter or any order issued under it, or to
attempt directly or indirectly to commit any act declared by this
section to be an unlawful discriminatory practice.
(K)(1) For any employer, employment agency, personnel
placement service, or labor organization to recklessly do any of
the following:
(a) Ask or require an applicant or employee to disclose
usernames or passwords associated with a private electronic
account of the applicant or employee;
(b) Ask or require an applicant or employee to provide the
employer, employment agency, personnel placement service, or labor
organization with access to a private electronic account of the
applicant or employee;
(c) Discharge, discipline, threaten to discharge or
discipline, or otherwise penalize an employee if the employee
refuses to disclose usernames or passwords associated with a
private electronic account of the employee, or if the employee
refuses to provide the employer, employment agency, personnel
placement service, or labor organization with access to a private
electronic account of the employee;
(d) Fail or refuse to hire an applicant for employment
because the applicant refuses to disclose usernames or passwords
associated with a private electronic account of the applicant, or
because the applicant refuses to provide the employer, employment
agency, personnel placement service, or labor organization with
access to a private electronic account of the employee.
(2) Division (K)(1) of this section shall not be construed to
prohibit an employer, employment agency, personnel placement
service, or labor organization from monitoring the electronic
accounts of employees or applicants on the electronic mail or
internet system of the employer, employment agency, personnel
placement service, or labor organization.
(3) For purposes of division (K) of this section:
(a) "Private electronic account" means a collection of
electronically stored private information regarding an individual,
including such collections stored on social media internet web
sites, in electronic mail, and on electronic devices.
(b) "Social media internet web site" means an internet web
site that allows individuals to do all of the following:
(i) Construct a public or semipublic profile within a bounded
system created by the service;
(ii) Create a list of other users with whom the individual
shares a connection within the system;
(iii) View and navigate the list of users with whom the
individual shares a connection and those lists of users made by
others within the system.
(L)(1) Nothing in division (H) of this section shall bar any
religious or denominational institution or organization, or any
nonprofit charitable or educational organization that is operated,
supervised, or controlled by or in connection with a religious
organization, from limiting the sale, rental, or occupancy of
housing accommodations that it owns or operates for other than a
commercial purpose to persons of the same religion, or from giving
preference in the sale, rental, or occupancy of such housing
accommodations to persons of the same religion, unless membership
in the religion is restricted on account of race, color, or
national origin.
(2) Nothing in division (H) of this section shall bar any
bona fide private or fraternal organization that, incidental to
its primary purpose, owns or operates lodgings for other than a
commercial purpose, from limiting the rental or occupancy of the
lodgings to its members or from giving preference to its members.
(3) Nothing in division (H) of this section limits the
applicability of any reasonable local, state, or federal
restrictions regarding the maximum number of occupants permitted
to occupy housing accommodations. Nothing in that division
prohibits the owners or managers of housing accommodations from
implementing reasonable occupancy standards based on the number
and size of sleeping areas or bedrooms and the overall size of a
dwelling unit, provided that the standards are not implemented to
circumvent the purposes of this chapter and are formulated,
implemented, and interpreted in a manner consistent with this
chapter and any applicable local, state, or federal restrictions
regarding the maximum number of occupants permitted to occupy
housing accommodations.
(4) Nothing in division (H) of this section requires that
housing accommodations be made available to an individual whose
tenancy would constitute a direct threat to the health or safety
of other individuals or whose tenancy would result in substantial
physical damage to the property of others.
(5) Nothing in division (H) of this section pertaining to
discrimination on the basis of familial status shall be construed
to apply to any of the following:
(a) Housing accommodations provided under any state or
federal program that have been determined under the "Fair Housing
Amendments Act of 1988," 102 Stat. 1623, 42 U.S.C.A. 3607, as
amended, to be specifically designed and operated to assist
elderly persons;
(b) Housing accommodations intended for and solely occupied
by persons who are sixty-two years of age or older;
(c) Housing accommodations intended and operated for
occupancy by at least one person who is fifty-five years of age or
older per unit, as determined under the "Fair Housing Amendments
Act of 1988," 102 Stat. 1623, 42 U.S.C.A. 3607, as amended.
(L)(M) Nothing in divisions (A) to (E) of this section shall
be construed to require a person with a disability to be employed
or trained under circumstances that would significantly increase
the occupational hazards affecting either the person with a
disability, other employees, the general public, or the facilities
in which the work is to be performed, or to require the employment
or training of a person with a disability in a job that requires
the person with a disability routinely to undertake any task, the
performance of which is substantially and inherently impaired by
the person's disability.
(M)(N) Nothing in divisions (H)(1) to (18) of this section
shall be construed to require any person selling or renting
property to modify the property in any way or to exercise a higher
degree of care for a person with a disability, to relieve any
person with a disability of any obligation generally imposed on
all persons regardless of disability in a written lease, rental
agreement, or contract of purchase or sale, or to forbid
distinctions based on the inability to fulfill the terms and
conditions, including financial obligations, of the lease,
agreement, or contract.
(N)(O) An aggrieved individual may enforce the individual's
rights relative to discrimination on the basis of age as provided
for in this section by instituting a civil action, within one
hundred eighty days after the alleged unlawful discriminatory
practice occurred, in any court with jurisdiction for any legal or
equitable relief that will effectuate the individual's rights.
A person who files a civil action under this division is
barred, with respect to the practices complained of, from
instituting a civil action under section 4112.14 of the Revised
Code and from filing a charge with the commission under section
4112.05 of the Revised Code.
(O)(P) With regard to age, it shall not be an unlawful
discriminatory practice and it shall not constitute a violation of
division (A) of section 4112.14 of the Revised Code for any
employer, employment agency, joint labor-management committee
controlling apprenticeship training programs, or labor
organization to do any of the following:
(1) Establish bona fide employment qualifications reasonably
related to the particular business or occupation that may include
standards for skill, aptitude, physical capability, intelligence,
education, maturation, and experience;
(2) Observe the terms of a bona fide seniority system or any
bona fide employee benefit plan, including, but not limited to, a
retirement, pension, or insurance plan, that is not a subterfuge
to evade the purposes of this section. However, no such employee
benefit plan shall excuse the failure to hire any individual, and
no such seniority system or employee benefit plan shall require or
permit the involuntary retirement of any individual, because of
the individual's age except as provided for in the "Age
Discrimination in Employment Act Amendment of 1978," 92 Stat. 189,
29 U.S.C.A. 623, as amended by the "Age Discrimination in
Employment Act Amendments of 1986," 100 Stat. 3342, 29 U.S.C.A.
623, as amended.
(3) Retire an employee who has attained sixty-five years of
age who, for the two-year period immediately before retirement, is
employed in a bona fide executive or a high policymaking position,
if the employee is entitled to an immediate nonforfeitable annual
retirement benefit from a pension, profit-sharing, savings, or
deferred compensation plan, or any combination of those plans, of
the employer of the employee, which equals, in the aggregate, at
least forty-four thousand dollars, in accordance with the
conditions of the "Age Discrimination in Employment Act Amendment
of 1978," 92 Stat. 189, 29 U.S.C.A. 631, as amended by the "Age
Discrimination in Employment Act Amendments of 1986," 100 Stat.
3342, 29 U.S.C.A. 631, as amended;
(4) Observe the terms of any bona fide apprenticeship program
if the program is registered with the Ohio apprenticeship council
pursuant to sections 4139.01 to 4139.06 of the Revised Code and is
approved by the federal committee on apprenticeship of the United
States department of labor.
(P)(Q) Nothing in this chapter prohibiting age discrimination
and nothing in division (A) of section 4112.14 of the Revised Code
shall be construed to prohibit the following:
(1) The designation of uniform age the attainment of which is
necessary for public employees to receive pension or other
retirement benefits pursuant to Chapter 145., 742., 3307., 3309.,
or 5505. of the Revised Code;
(2) The mandatory retirement of uniformed patrol officers of
the state highway patrol as provided in section 5505.16 of the
Revised Code;
(3) The maximum age requirements for appointment as a patrol
officer in the state highway patrol established by section 5503.01
of the Revised Code;
(4) The maximum age requirements established for original
appointment to a police department or fire department in sections
124.41 and 124.42 of the Revised Code;
(5) Any maximum age not in conflict with federal law that may
be established by a municipal charter, municipal ordinance, or
resolution of a board of township trustees for original
appointment as a police officer or firefighter;
(6) Any mandatory retirement provision not in conflict with
federal law of a municipal charter, municipal ordinance, or
resolution of a board of township trustees pertaining to police
officers and firefighters;
(7) Until January 1, 1994, the mandatory retirement of any
employee who has attained seventy years of age and who is serving
under a contract of unlimited tenure, or similar arrangement
providing for unlimited tenure, at an institution of higher
education as defined in the "Education Amendments of 1980," 94
Stat. 1503, 20 U.S.C.A. 1141(a).
(Q)(R)(1)(a) Except as provided in division (Q)(R)(1)(b) of
this section, for purposes of divisions (A) to (E) of this
section, a disability does not include any physiological disorder
or condition, mental or psychological disorder, or disease or
condition caused by an illegal use of any controlled substance by
an employee, applicant, or other person, if an employer,
employment agency, personnel placement service, labor
organization, or joint labor-management committee acts on the
basis of that illegal use.
(b) Division (Q)(R)(1)(a) of this section does not apply to
an employee, applicant, or other person who satisfies any of the
following:
(i) The employee, applicant, or other person has successfully
completed a supervised drug rehabilitation program and no longer
is engaging in the illegal use of any controlled substance, or the
employee, applicant, or other person otherwise successfully has
been rehabilitated and no longer is engaging in that illegal use.
(ii) The employee, applicant, or other person is
participating in a supervised drug rehabilitation program and no
longer is engaging in the illegal use of any controlled substance.
(iii) The employee, applicant, or other person is erroneously
regarded as engaging in the illegal use of any controlled
substance, but the employee, applicant, or other person is not
engaging in that illegal use.
(2) Divisions (A) to (E) of this section do not prohibit an
employer, employment agency, personnel placement service, labor
organization, or joint labor-management committee from doing any
of the following:
(a) Adopting or administering reasonable policies or
procedures, including, but not limited to, testing for the illegal
use of any controlled substance, that are designed to ensure that
an individual described in division (Q)(R)(1)(b)(i) or (ii) of
this section no longer is engaging in the illegal use of any
controlled substance;
(b) Prohibiting the illegal use of controlled substances and
the use of alcohol at the workplace by all employees;
(c) Requiring that employees not be under the influence of
alcohol or not be engaged in the illegal use of any controlled
substance at the workplace;
(d) Requiring that employees behave in conformance with the
requirements established under "The Drug-Free Workplace Act of
1988," 102 Stat. 4304, 41 U.S.C.A. 701, as amended;
(e) Holding an employee who engages in the illegal use of any
controlled substance or who is an alcoholic to the same
qualification standards for employment or job performance, and the
same behavior, to which the employer, employment agency, personnel
placement service, labor organization, or joint labor-management
committee holds other employees, even if any unsatisfactory
performance or behavior is related to an employee's illegal use of
a controlled substance or alcoholism;
(f) Exercising other authority recognized in the "Americans
with Disabilities Act of 1990," 104 Stat. 327, 42 U.S.C.A. 12101,
as amended, including, but not limited to, requiring employees to
comply with any applicable federal standards.
(3) For purposes of this chapter, a test to determine the
illegal use of any controlled substance does not include a medical
examination.
(4) Division (Q)(R) of this section does not encourage,
prohibit, or authorize, and shall not be construed as encouraging,
prohibiting, or authorizing, the conduct of testing for the
illegal use of any controlled substance by employees, applicants,
or other persons, or the making of employment decisions based on
the results of that type of testing.
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), or (K) 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.
(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), or (K) 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 the commission finds a violation of division (K) of section
4112.02 of the Revised Code, it additionally shall require the
respondent to pay the fine required under division (B) of section
4112.99 of the Revised Code. 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.
(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.
Sec. 4112.08. This chapter shall be construed liberally for
the accomplishment of its purposes, and any law inconsistent with
any provision of this chapter shall not apply. Nothing contained
in this chapter shall be considered to repeal any of the
provisions of any law of this state relating to discrimination
because of race, color, religion, sex, military status, familial
status, disability, national origin, age, or ancestry, except that
any person filing a charge under division (B)(1) of section
4112.05 of the Revised Code, with respect to the unlawful
discriminatory practices complained of, is barred from instituting
a civil action under section 4112.14 or division (N)(O) of section
4112.02 of the Revised Code.
Sec. 4112.14. (A) No employer shall discriminate in any job
opening against any applicant or discharge without just cause any
employee aged forty or older who is physically able to perform the
duties and otherwise meets the established requirements of the job
and laws pertaining to the relationship between employer and
employee.
(B) Any person aged forty or older who is discriminated
against in any job opening or discharged without just cause by an
employer in violation of division (A) of this section may
institute a civil action against the employer in a court of
competent jurisdiction. If the court finds that an employer has
discriminated on the basis of age, the court shall order an
appropriate remedy which shall include reimbursement to the
applicant or employee for the costs, including reasonable
attorney's fees, of the action, or to reinstate the employee in
the employee's former position with compensation for lost wages
and any lost fringe benefits from the date of the illegal
discharge and to reimburse the employee for the costs, including
reasonable attorney's fees, of the action. The remedies available
under this section are coexistent with remedies available pursuant
to sections 4112.01 to 4112.11 of the Revised Code; except that
any person instituting a civil action under this section is, with
respect to the practices complained of, thereby barred from
instituting a civil action under division (N)(O) of section
4112.02 of the Revised Code or from filing a charge with the Ohio
civil rights commission under section 4112.05 of the Revised Code.
(C) The cause of action described in division (B) of this
section and any remedies available pursuant to sections 4112.01 to
4112.11 of the Revised Code shall not be available in the case of
discharges where the employee has available to the employee the
opportunity to arbitrate the discharge or where a discharge has
been arbitrated and has been found to be for just cause.
Sec. 4112.15. There is hereby created in the state treasury
the civil rights commission general reimbursement fund, which
shall be used to pay operating costs of the commission. All
amounts received by the commission, and all amounts awarded by a
court to the commission, for attorney's fees, court costs, expert
witness fees, and other litigation expenses shall be paid into the
state treasury to the credit of the fund. All amounts received by
the commission for copies of commission documents and for other
goods and services furnished by the commission shall be paid into
the state treasury to the credit of the fund. All collected fines
charged under division (B) of section 4112.99 of the Revised Code
shall be paid into the state treasury to the credit of the fund.
Sec. 4112.99. (A) Whoever violates this chapter is subject
to a civil action for damages, injunctive relief, or any other
appropriate relief.
(B) In addition to any damages and relief that may be
available in division (A) of this section, whoever violates
division (K) of section 4112.02 of the Revised Code shall be
subject to a fine in the amount of up to one thousand dollars for
the first violation of that division, and up to two thousand
dollars for each subsequent violation.
Section 2. That existing sections 4112.02, 4112.05, 4112.08,
4112.14, 4112.15, and 4112.99 of the Revised Code are hereby
repealed.
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