Text of OH HB 524 (2024)

As Introduced 135th General Assembly Regular Session H. B. No. 524 2023-2024 Representative Skindell Cosponsors: Representatives Russo, Grim, Somani, Brent, Jarrells, Weinstein, Upchurch, Brennan, Brewer, Isaacsohn, Brown, Miller, A., Liston, McNally, Sweeney, Forhan, Thomas, C., Troy, Baker, Miller, J., Robinson, Dell'Aquila, Rogers, Humphrey, Denson, Blackshear, Mohamed, Sims, Piccolantonio, Whitted A B I L L To amend sections 4112.01 and 4112.05 of the Revised Code to enact the Ohio Fairness Act to prohibit discrimination on the basis of sexual orientation or gender identity or expression, to add mediation as an informal method that the Ohio Civil Rights Commission may use, and to uphold existing religious exemptions under Ohio's Civil Rights Law. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: Section 1. That sections 4112.01 and 4112.05 of the Revised Code be amended to read as follows: Sec. 4112.01. (A) As used in this chapter: (1) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, and other organized groups of persons. "Person" also includes, but is not limited to, any owner, lessor, assignor, builder, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 H. B. No. 524 Page 2 As Introduced manager, broker, salesperson, appraiser, agent, employee, lending institution, and the state and all political subdivisions, authorities, agencies, boards, and commissions of the state. (2) "Employer" means the state, any political subdivision of the state, or a person employing four or more persons within the state, and any agent of the state, political subdivision, or person. (3) "Employee" means an individual employed by any employer but does not include any individual employed in the domestic service of any person. (4) "Labor organization" includes any organization that exists, in whole or in part, for the purpose of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or other mutual aid or protection in relation to employment. (5) "Employment agency" includes any person regularly undertaking, with or without compensation, to procure opportunities to work or to procure, recruit, refer, or place employees. (6) "Commission" means the Ohio civil rights commission created by section 4112.03 of the Revised Code. (7) "Discriminate" includes segregate or separate. (8) "Unlawful discriminatory practice" means any act prohibited by section 4112.02, 4112.021, or 4112.022 of the Revised Code. (9) "Place of public accommodation" means any inn, restaurant, eating house, barbershop, public conveyance by air, 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 H. B. No. 524 Page 3 As Introduced land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public. (10) "Housing accommodations" includes any building or structure, or portion of a building or structure, that is used or occupied or is intended, arranged, or designed to be used or occupied as the home residence, dwelling, dwelling unit, or sleeping place of one or more individuals, groups, or families whether or not living independently of each other; and any vacant land offered for sale or lease. "Housing accommodations" also includes any housing accommodations held or offered for sale or rent by a real estate broker, salesperson, or agent, by any other person pursuant to authorization of the owner, by the owner, or by the owner's legal representative. (11) "Restrictive covenant" means any specification limiting the transfer, rental, lease, or other use of any housing accommodations because of race, color, religion, sex, military status, familial status, national origin, disability, or ancestry, or any limitation based upon affiliation with or approval by any person, directly or indirectly, employing race, color, religion, sex, military status, familial status, national origin, disability, or ancestry as a condition of affiliation or approval. (12) "Burial lot" means any lot for the burial of deceased persons within any public burial ground or cemetery, including, but not limited to, cemeteries owned and operated by municipal corporations, townships, or companies or associations incorporated for cemetery purposes. (13) "Disability" means a physical or mental impairment 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 H. B. No. 524 Page 4 As Introduced that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment. (14) Except as otherwise provided in section 4112.021 of the Revised Code, "age" means an individual aged forty years or older. (15) "Familial status" means either of the following: (a) One or more individuals who are under eighteen years of age and who are domiciled with a parent or guardian having legal custody of the individual or domiciled, with the written permission of the parent or guardian having legal custody, with a designee of the parent or guardian; (b) Any person who is pregnant or in the process of securing legal custody of any individual who is under eighteen years of age. (16)(a) Except as provided in division (A)(16)(b) of this section, "physical or mental impairment" includes any of the following: (i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; (ii) Any mental or psychological disorder, including, but not limited to, intellectual disability, organic brain syndrome, 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 H. B. No. 524 Page 5 As Introduced emotional or mental illness, and specific learning disabilities; (iii) Diseases and conditions, including, but not limited to, orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus infection, intellectual disability, emotional illness, drug addiction, and alcoholism. (b) "Physical or mental impairment" does not include any of the following: (i) Homosexuality and bisexuality; (ii) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (iii) Compulsive gambling, kleptomania, or pyromania; (iv) Psychoactive substance use disorders resulting from the current illegal use of a controlled substance or the current use of alcoholic beverages. (17) "Dwelling unit" means a single unit of residence for a family of one or more persons. (18) "Common use areas" means rooms, spaces, or elements inside or outside a building that are made available for the use of residents of the building or their guests, and includes, but is not limited to, hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas, and passageways among and between buildings. (19) "Public use areas" means interior or exterior rooms or spaces of a privately or publicly owned building that are 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 H. B. No. 524 Page 6 As Introduced made available to the general public. (20) "Controlled substance" has the same meaning as in section 3719.01 of the Revised Code. (21) "Disabled tenant" means a tenant or prospective tenant who is a person with a disability. (22) "Military status" means a person's status in "service in the uniformed services" as defined in section 5923.05 of the Revised Code. (23) "Aggrieved person" includes both of the following: (a) Any person who claims to have been injured by any unlawful discriminatory practice described in division (H) of section 4112.02 of the Revised Code; (b) Any person who believes that the person will be injured by any unlawful discriminatory practice described in division (H) of section 4112.02 of the Revised Code that is about to occur. (24) "Unlawful discriminatory practice relating to employment" means both of the following: (a) An unlawful discriminatory practice that is prohibited by division (A), (B), (C), (D), (E), or (F) of section 4112.02 of the Revised Code; (b) An unlawful discriminatory practice that is prohibited by division (I) or (J) of section 4112.02 of the Revised Code that is related to employment. (25) "Notice of right to sue" means a notice sent by the commission to a person who files a charge under section 4112.051 of the Revised Code that states that the person who filed the 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 H. B. No. 524 Page 7 As Introduced charge may bring a civil action related to the charge pursuant to section 4112.052 or 4112.14 of the Revised Code, in accordance with section 4112.052 of the Revised Code. (B) For the purposes of divisions (A) to (F) of section 4112.02 of the Revised Code, the terms "because of sex" and "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in division (B) of section 4111.17 of the Revised Code shall be interpreted to permit otherwise. This division shall not be construed to require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term or except where medical complications have arisen from the abortion, provided that nothing in this division precludes an employer from providing abortion benefits or otherwise affects bargaining agreements in regard to abortion. (C) For purposes of the Revised Code, any provision respecting sex discrimination includes discrimination because of a person's sexual orientation or gender identity or expression. Sec. 4112.05. (A)(1) With the exception of unlawful discriminatory practices relating to employment, the commission, as provided in this section, shall prevent any person from engaging in unlawful discriminatory practices. (2) The commission may at any time attempt to resolve 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 H. B. No. 524 Page 8 As Introduced allegations of unlawful discriminatory practices other than allegations concerning unlawful discriminatory practices relating to employment by the use of alternative dispute resolution, provided that, before instituting the formal hearing authorized by division (B) of this section, it shall attempt, by informal methods of conference, conciliation, mediation, 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 that is not an unlawful discriminatory practice relating to employment and that is described in division (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. (a) An oath under this section may be made in any form of affirmation the person deems binding on the person's conscience. Acceptable forms include, but are not limited to, declarations made under penalty of perjury. (b) Any charge timely received, via facsimile, postal mail, electronic mail, or otherwise, may be signed under oath after the limitations period for filing set forth under division (B)(1) of this section and will relate back to the original 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 H. B. No. 524 Page 9 As Introduced filing date. (2) Upon receiving a charge other than a charge concerning unlawful discriminatory practices relating to employment, 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 that are not unlawful discriminatory practices relating to employment and that are described in division (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, mediation, and persuasion, or alternative dispute resolution, 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 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 H. B. No. 524 Page 10 As Introduced 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, mediation, and persuasion, or alternative dispute resolution; (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 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 H. B. No. 524 Page 11 As Introduced alleges an unlawful discriminatory practice described in division (H) of section 4112.02 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, mediation, and persuasion, or by alternative dispute resolution, 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 concerning an alleged unlawful discriminatory practice relating to employment or 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 one concerning an alleged unlawful discriminatory practice relating to employment or 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, mediation, and persuasion, or by alternative dispute resolution. (5) Nothing said or done during informal methods of conference, conciliation, mediation, and persuasion, or during 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 H. B. No. 524 Page 12 As Introduced alternative dispute resolution, 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, mediation, and persuasion, or alternative dispute resolution, 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, mediation, and persuasion, or by alternative dispute resolution 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 4112.055 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 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 H. B. No. 524 Page 13 As Introduced 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 4112.055 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)(1) 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. (a) Except as provided in division (C)(1)(b) of this section, a complaint issued pursuant to division (B) of this section may be amended at any time prior to or during the hearing. (b) If a complaint issued pursuant to division (B) of this section alleges an unlawful discriminatory practice described in division (H) of section 4112.02 of the Revised Code, the complaint may be amended at any time up to seven days prior to the hearing and not thereafter. (2) 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 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 H. B. No. 524 Page 14 As Introduced 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, 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 H. B. No. 524 Page 15 As Introduced 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)(a) 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 do all of the following: (i) Cease and desist from the unlawful discriminatory practice; (ii) 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; (iii) Report to the commission the manner of compliance. If the commission directs payment of back pay, it shall make allowance for interim earnings. (b) If the commission finds a violation of division (H) of section 4112.02 of the Revised Code, in addition to the action described in division (G)(1)(a) of this section, the commission additionally may require the respondent to undergo remediation in the form of a class, seminar, or any other type of remediation approved by the commission, may require the respondent to pay actual damages and reasonable attorney's fees, 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 H. B. No. 524 Page 16 As Introduced and may, to vindicate the public interest, assess a civil penalty against the respondent as follows: (i) If division (G)(1)(b)(ii) or (iii) of this section does not apply, a civil penalty in an amount not to exceed ten thousand dollars; (ii) If division (G)(1)(b)(iii) 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, a civil penalty in an amount not to exceed twenty-five thousand dollars; (iii) 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, a civil penalty 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 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 H. B. No. 524 Page 17 As Introduced 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. 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 may award to the respondent reasonable attorney's fees to the extent provided in 5 U.S.C. 504 and accompanying regulations. (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 sections 4112.01 and 4112.05 of the Revised Code are hereby repealed. Section 3. This act upholds existing religious exemptions currently in Ohio law. 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479