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Bill Analysis

Legislative Service Commission

S.B. 305
127th General Assembly
(As Introduced)

BILL SUMMARY TABLE OF CONTENTS
Ohio Civil Rights Commission Law.. 2 Other laws' prohibitions against discrimination. 4
Other provisions of law.. 7


CONTENT AND OPERATION
Ohio Civil Rights Commission Law
Existing law
The Ohio Civil Rights Commission (OCRC) Law currently prohibits various unlawful discriminatory practices by the following:  (1) employers, employment agencies, personnel placement services, labor organizations, joint labor-management committees, and persons seeking employment, in employment or employment-related membership situations, (2) proprietors, employees, keepers, and managers of places of public accommodation in making the full enjoyment of these places available to the public, (3) any person in transactions involving housing accommodations, such as the sale or rental of housing accommodations or the extension of financial assistance for the purchase of those accommodations, (4) any creditor in the extension of credit for other types of purchases or transactions, (5) credit reporting agencies in maintaining information, and (6) educational institutions in connection with admission, assignment to programs or housing, awarding of grades, services, or financial aid, or permitting participation in activities with respect to their treatment of individuals with a disability (R.C. 4112.02 and 4112.021; R.C. 4112.022--not in the bill).  Existing law defines "unlawful discriminatory practice" as any act prohibited by R.C. 4112.02, 4112.021, or 4112.022 (R.C. 4112.01(A)(8)).  These unlawful discriminatory practices include, but are not limited to, discrimination on the basis of the race, color, religion, age, sex, familial status, marital status, national origin, ancestry, or disability (hereafter, "covered characteristics") of an employee; an applicant for employment, for membership, for the purchase, lease, or financing of housing accommodations, or for credit; a person seeking access to a place of public accommodation; or any appropriate person as specified in the laws generally described in (1) to (6), above  (R.C. 4112.02(A) to (H) and 4112.021).[1]
Changes proposed by the bill
The bill adds sexual orientation to the covered characteristics that can be the basis for unlawful discriminatory practices under the prohibitions of the existing OCRC Law (R.C. 4112.01(A)(11), 4112.02(A) to (H), and 4112.021). The bill defines "sexual orientation" as heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived (R.C. 4112.01(A)(22)).[2]
The bill also adds sexual orientation to the covered characteristics in the provisions of existing law that require the Ohio Civil Rights Commission to do all of the following (R.C. 4112.04(A)(7), (9), and (10)):
(1) Make periodic surveys of the existence and effect of discrimination on the basis of most of the covered characteristics on the enjoyment of civil rights by persons within Ohio;
(2) Prepare a comprehensive educational program, in cooperation with the State Department of Education, for Ohio public school students and all other Ohio residents that is designed to eliminate prejudice on the basis of most of the covered characteristics, to further good will among the groups with the covered characteristics, and to emphasize the origin of prejudice against those groups, its harmful effects, and its incompatibility with American principles of equality and fair play;
(3) Receive progress reports from state agencies and entities and from political subdivisions and their agencies and entities regarding:  (a) affirmative action programs for the employment of persons against whom discrimination is prohibited by the OCRC Law, (b) affirmative action programs for the employment of persons against whom discrimination is prohibited by the OCRC Law, or (c) affirmative housing accommodations programs developed to eliminate or reduce an imbalance of a covered characteristic.
Sexual orientation is also added to the covered characteristics in current law's provisions (1) that authorize the Commission itself, or authorize the Commission to empower local and statewide advisory agencies and conciliation councils the Commission creates, to study the problems of discrimination on the basis of most of the covered characteristics in all or specific fields of human relationships and (2) that authorize the Commission to issue any publications and the results of investigations and research that in its judgment will tend to promote good will and minimize or eliminate discrimination on the basis of most of the covered characteristics (R.C. 4112.04(B)(4)(a) and (5)).
The bill provides that nothing in the OCRC Law's provisions that govern Commission hearings on alleged unlawful discriminatory practices may be construed to authorize or require any person to observe the proportion that persons of any sexual orientation or persons of any of current law's covered characteristics bear to the total population or in accordance with any criterion other than the individual qualifications of an applicant for employment or membership.  And, nothing in the OCRC Law may be considered as repealing any provision of Ohio law relating to discrimination because of sexual orientation or any covered characteristic.  Similar provisions exist in current law relative to discrimination on the basis of most of the covered characteristics.  (R.C. 4112.05(E) and 4112.08.)
Other laws' prohibitions against discrimination
Various provisions of current law prohibit persons or entities from discriminating on the basis of most or all of the covered characteristics described above under "Ohio Civil Rights Commission Law."  Some of those existing provisions also include another characteristic (such as inability to pay, political affiliation, or health status), in addition to the covered characteristics, that applies to the particular situation covered by the provision.  The bill adds sexual orientation as defined by the bill to the list of covered characteristics specified in the following provisions (see COMMENT).  The persons or entities that are prohibited from doing the described acts are as follows:
(1) A governing body of a political subdivision--generally from using public funds to publish, distribute, or otherwise communicate information that promotes illegal discrimination on the basis of race, color, religion, national origin, handicap, age, or ancestry (R.C. 9.03(C)(1)(c)).
(2) A health insuring corporation that enters into or renews a contract with the Department of Administrative Services under R.C. 124.82 (group health insurance for state employees)--from refusing to contract with a physician for the provision of health care services because of a physician's race, color, religion, sex, national origin, disability, age, or ancestry (R.C. 124.93(B)).
(3) A municipal corporation, county, or township--from issuing general housing obligations to provide, or assist in providing, housing pursuant to Section 16 of Article VIII, Ohio Constitution, unless the municipal legislative authority, board of county commissioners, or board of township trustees has complied with certain requirements, including the submission to the Housing Advisory Board serving it of a plan for affirmative marketing to persons, regardless of marital status, who are members of groups that may be disadvantaged by discrimination on the basis of race, religion, sex, disability, national origin, or ancestry, children, or other similar cause (R.C. 176.04(B)(3)).
(4) A board of alcohol, drug addiction, and mental health services or any agency, corporation, or association under contract with such a board--from discriminating in the provision of services under its authority, in employment, or contract on the basis of race, color, sex, creed, disability, national origin, or the inability to pay (R.C. 340.12).
(5) A board of township trustees, in establishing the terms of any rental agreement or lease of all or part of any hall, lodge, or recreational facility of the township--from making a differentiation in the treatment of persons on the basis of race, color, religion, national origin, sex, or political affiliation (R.C. 511.03).
(6) A municipal corporation--from denying housing accommodations to, or withholding housing accommodations from, elderly persons or persons of low and moderate income because of race, color, religion, sex, familial status, disability, ancestry, or national origin.  Any elderly person or person of low or moderate income who is aggrieved by such denial or withholding may file a charge with the Ohio Civil Rights Commission.  (R.C. 717.01(AA).)
(7) A health insuring corporation, or health care facility or provider through which the health insuring corporation has made arrangements to provide health care services, unless otherwise required by state or federal law--from discriminating against any individual with regard to enrollment, disenrollment, or the quality of health care services rendered, on the basis of the individual's race, color, sex, age, religion, or status as a recipient of Medicare or medical assistance, or any health status-related factor in relation to the individual (R.C. 1751.18(A)(2)).
(8) Any person, whether or not acting under color of law, by force or threat of force--from willfully injuring, intimidating, or interfering with, or attempting to injure, intimidate, or interfere with, any of the following (R.C. 2927.03(A)):
(a) Any person because of race, color, religion, sex, familial status, national origin, disability, or ancestry and because that person is or has been selling, purchasing, renting, financing, occupying, contracting, or negotiating for the sale, purchase, rental, financing, or occupation of any housing accommodations, or applying for or participating in any service, organization, or facility relating to the business of selling or renting housing accommodations;
(b) Any person because that person is or has been participating, or in order to intimidate that person or any other person or any class of persons from  participating, without discrimination on account of race, color, religion, sex, familial status, national origin, disability, or ancestry, in any of the activities, services, organizations, or facilities described in (a), above;
(c) Any person because that person is or has been, or in order to discourage that person or any other person from, lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion, sex, familial status, national origin, disability, or ancestry, in any of the activities, services, organizations, or facilities described in (a), above, or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate.
(9) A board of education--from discriminating on the basis of sex, race, religion, or national origin when assigning pupils to attendance schedules (R.C. 3313.481(C)).
(10) An employer, including the state and its political subdivisions--from discriminating in the payment of wages on the basis of race, color, religion, sex, age, national origin, or ancestry by paying wages to any employee at a rate less than the rate at which the employer pays wages to another employee for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar conditions.   An employer is not prohibited from paying wages at a different rate if the payment is made pursuant to a wage differential determined by any factor other than race, color, religion, sex, age, national origin, or ancestry.  (R.C. 4111.17(A) and (B)(4).)
(11) The Counselor, Social Worker, and Marriage and Family Therapist Board and its professional standards committees--from discriminating against any licensee, registrant, or applicant for a license or certificate of registration under R.C. Chapter 4757. because of the person's race, color, religion, sex, national origin, disability, or age.  The Board or committee, as appropriate, must afford a hearing to any person who files with the Board or committee a statement alleging discrimination based on that reason.  (R.C. 4757.07.)
(12) The Chemical Dependency Professionals Board--from discriminating against any licensee, certificate holder, or applicant for a license or certificate under R.C. Chapter 4758. because of the individual's race, color, religion, gender, national origin, disability, or age.  The Board must afford a hearing to any individual who files with it a statement alleging discrimination based on that reason.  (R.C. 4758.16.)
(13) An administrator, licensee, or child-care staff member--from discriminating in the enrollment of children in a child day-care center on the basis of race, color, religion, sex, or national origin (R.C. 5104.09(C)).
(14) A county board of mental retardation and developmental disabilities or any agency, corporation, or association under contract with such a county board--from discriminating in the provision of services under its authority or contract on the basis of race, color, sex, creed, disability, national origin, or the inability to pay (current law).  Each county board of mental retardation and developmental disabilities must provide a plan of affirmative action describing its goals and methods for the provision of equal employment opportunities for all persons under its authority and must ensure nondiscrimination in employment under its authority or contract on the basis of race, color, sex, creed, disability, or national origin.  (R.C. 5126.07.)
Other provisions of law
Various sections of the Revised Code have provisions that require certain functions or duties to be performed without discrimination, require certain documents to include statements pertaining to nondiscrimination, or pertain to discrimination on the basis of some or all of the covered characteristics described above under "Ohio Civil Rights Commission Law."  Some of those existing provisions also include another characteristic (such as health status, geographic location, or inability to pay), in addition to the covered characteristics, that applies to the particular situation covered by the provision.  The bill modifies the current provisions by adding sexual orientation as defined by the bill to the list of covered characteristics specified in each provision that does the following (see COMMENT):
(1) Requires every contract for or on behalf of the state or any of its political subdivisions for any purchase, to contain provisions by which the contractor agrees to both of the following:  (a) that, in the hiring of employees for the performance of work under the contract or any subcontract, no contractor or subcontractor, by reason of race, color, religion, sex, age, disability, national origin, or ancestry, will discriminate against any citizen of Ohio in the employment of a person qualified and available to perform the work to which the contract relates, and (b) that no contractor, subcontractor, or person acting on behalf of any contractor or subcontractor, in any manner, will discriminate against, intimidate, or retaliate against any employee hired for the performance of work under the contract on account of race, color, religion, sex, age, disability, national origin, or ancestry (R.C. 125.111(A)(1) and (2)).
(2)(a) Requires every contract for or on behalf of the state or any township, county, or municipal corporation for construction, alteration, or repair of any public building or public work in the state to contain provisions by which the contractor agrees to both of the following:  (i) that, in the hiring of employees for the performance of work under the contract or any subcontract, no contractor, subcontractor, or any person acting on a contractor's or subcontractor's behalf, by reason of race, creed, sex, disability, or color, will discriminate against any citizen of Ohio in the employment of labor or workers qualified and available to perform the work to which the contract relates, and (ii) that no contractor, subcontractor, or person acting on a contractor's or subcontractor's behalf, in any manner, will discriminate against or intimidate any employee hired for the performance of work under the contract on account of race, creed, sex, disability, or color;
(b) Requires the Department of Administrative Services to ensure that no appropriated capital moneys be expended unless the project for which those moneys were appropriated provides for an affirmative action program for the employment and effective utilization of disadvantaged persons whose disadvantage may arise from cultural, racial, or ethnic background, or other similar cause, including, but not limited to, race, religion, sex, disability, national origin, or ancestry;
(c) Requires the Department to award contracts for capital improvement projects to ensure that equal consideration be given to contractors, subcontractors, or joint venturers who qualify as a minority business enterprise, defines "minority business enterprise" as a business enterprise that is owned or controlled by one or more socially or economically disadvantaged persons who are Ohio residents, and defines "socially or economically disadvantaged persons" to include persons, regardless of marital status, who are members of groups whose disadvantage may arise from discrimination on the basis of race, religion, sex, disability, national origin, ancestry, or other similar cause.  (R.C. 153.59.)
(3) Declares any provision of a hiring hall contract or agreement that obligates a contractor to hire only available employees referred by a labor organization void as against public policy and unenforceable with respect to employment under any public works contract unless at the date of execution of the contract or agreement, or within 30 days thereafter, the labor organization has in effect procedures for referring qualified employees for hire without regard to race, color, religion, national origin, or ancestry (R.C. 153.591).
(4) Requires each municipal corporation, county, and township that compiles and makes available for public inspection and copying the number and total dollar amount of mortgage loans that were originated, for which completed applications were received and applicants were rejected, and that were purchased by that political subdivision during each fiscal year, to include information regarding each of those mortgage loan categories to be itemized to clearly and conspicuously disclose the number and dollar amount of mortgage loans involving mortgagors or mortgage applicants grouped according to census tract, income level, and race, color, religion, sex, ancestry, disability, and national origin (R.C. 176.06(A)(4)).
(5) Requires leases and contracts negotiated by the Director of Natural Resources for the construction and operation of certain public service facilities in state parks and for major renovation of existing public service facilities by the lessees of lands in state parks, to include in their terms and conditions a requirement that the facility be available to all members of the public without regard to sex, race, color, creed, ancestry, national origin, or disability (R.C. 1501.012(C)(9)).
(6) Requires an applicant for a bingo or instant bingo license seeking to qualify as a youth athletic park organization to include in the application a statement issued by its board or body with authority for the supervision and maintenance of recreation facilities in the territory in which the organization is located, certifying that the playing fields owned by the organization were open for use to all residents of that territory, regardless of race, color, creed, religion, sex, or national origin, for athletic activities by youth athletic organizations that do not discriminate on the basis of  most of any of those characteristics (R.C. 2915.08(A)(2)(j)).
(7) Provides that a shelter for victims of domestic violence does not qualify for funds from the county's collection of fees for marriage licenses and as additional costs in annulment, divorce, or dissolution of marriage actions if it discriminates in its admissions or provision of services on the basis of race, religion, color, age, marital status, national origin, or ancestry (R.C. 3113.36(B)).
(8) Requires the State Board of Education rules that prescribe minimum standards for certain preschool programs to include standards ensuring that preschool staff members and nonteaching employees are recruited, employed, assigned, evaluated, and provided inservice education without discrimination on the basis of age, color, national origin, race, or sex (R.C. 3301.53(A)(3)).
(9) Authorizes the Rehabilitation Services Commission to delegate to the Administrator of the Commission the authority to appoint, remove, and discipline without regard to sex, race, creed, color, age, or national origin, such other professional, administrative, and clerical staff members as necessary to carry out the Commission's functions and duties (R.C. 3304.14).
(10) Authorizes the Ohio Independent Living Council to delegate to the Council's Executive Director the authority to appoint, remove, and discipline without regard to sex, race, creed, color, age, or national origin, such other professional, administrative, and clerical staff members as are necessary to carry out the Council's functions and duties (R.C. 3304.50).
(11) Requires the governing authority of each community school to adopt admission procedures that specify that there will be no discrimination in the admission of students to the school on the basis of race, creed, color, handicapping condition, or sex except that single-gender schools may be established if certain conditions are met (R.C. 3314.06(D)(1)).
(12) Authorizes the State Board of Career Colleges and Schools to limit, suspend, revoke, or refuse to issue or renew a certificate of registration or program authorization or to impose a penalty for discrimination in the acceptance of students on the basis of race, color, religion, sex, or national origin (R.C. 3332.09(K)).
(13) Requires the rights of residents of a home to include, upon admission and thereafter, the right to adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted, and that this care will be provided without regard to considerations such as race, color, religion, national origin, age, or the source of payment for care (current law) (R.C. 3721.13(A)(3)).
(14) Generally authorizes an insurance agent to charge a consumer a fee if all of specified conditions are met, including the condition that the agent, in charging the fee, does not discriminate on the basis of race, sex, national origin, religion, disability, health status, age, marital status, or geographic location (current law) (R.C. 3905.55(A)(7)).
(15) Requires the annual report filed by an employee organization with the State Employment Relations Board to include a pledge that the organization will comply with the laws of Ohio and that it will accept members without regard to age, race, color, sex, creed, religion, ancestry, national origin, disability, or physical disability (R.C. 4117.19(B)(5)).
(16) Requires every real estate broker's office to include in the statement that is prominently displayed in the same immediate area as licenses are displayed a statement that it is illegal to discriminate against any person because of race, color, religion, sex, familial status, national origin, disability, or ancestry, in the sale or rental of housing or residential lots, in advertising the sale or rental of housing, in the financing of housing, or in the provision of real estate brokerage services (R.C. 4735.16(D)).
(17) Requires each written agency agreement (a contract between a licensee and a client in which the client promises to pay the real estate broker a valuable consideration, or agrees that the licensee may receive a valuable consideration from another, for performing an act that requires a real estate license) to contain a statement that it is illegal, pursuant to the Ohio Fair Housing Law and the Federal Fair Housing Law to 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, familial status, national origin, disability, or ancestry or to so discriminate in advertising the sale or rental of housing, in the financing of housing, or in the provision of real estate brokerage services (R.C. 4735.55(A)(2) and R.C. 4735.51--not in the bill).
(18) Authorizes the State Board of Emergency Medical Services to suspend or revoke a certificate of accreditation or a certificate of approval issued under R.C. 4765.17 for discrimination in the acceptance of students on the basis of race, color, religion, sex, or national origin (R.C. 4765.18(I)).
(19) For purposes of the current provision preventing any assistance group member from losing or being denied eligibility to participate in Ohio Works First if the termination of employment was because an assistance group member or recipient of transitional child day-care or transitional Medicaid secured comparable or better employment or the county department of job and family services certifies that the member or recipient terminated the employment with just cause, specifies that just cause includes discrimination by an employer based on age, race, sex, color, handicap, religious beliefs, or national origin (R.C. 5107.26(C)(1)).
(20) Requires every provider agreement with a nursing facility or intermediate care facility for the mentally retarded to prohibit the facility from discriminating against any patient on the basis of race, sex, color, creed, or national origin (R.C. 5111.31(A)(3)).
(21) Requires the Director of Mental Health, with respect to facilities and programs established and operated for mentally ill and emotionally disturbed persons, to withhold state or federal funds from a board of alcohol, drug addiction, and mental health services that denies available service on the basis of religion, race, color, creed, sex, national origin, age, disability, or the inability to pay (R.C. 5119.61(D)).
(22) Requires the Director of Mental Retardation and Developmental Disabilities, with respect to the eligibility for state reimbursement of expenses incurred by facilities and programs established and operated for persons with mental retardation or a developmental disability, to withhold state funds from an agency, corporation, or association denying or rendering service on the basis of race, color, sex, religion, ancestry, national origin, disability, or the inability to pay (R.C. 5123.351(E)).
(23) Requires that commercial advertising placed on buildings located in  roadside rest areas under the jurisdiction of the Department of Transportation not promote illegal discrimination on the basis of race, religion, national origin, handicap, age, or ancestry (R.C. 5515.08(B)(2)).
(24) For purposes of the current requirement that the legislative authority of a county, township, or municipal corporation that grants an exemption from taxation under certain laws must develop policies to ensure that the recipient of the exemption practices nondiscriminatory hiring in its operations, modifies the definition of "nondiscriminatory hiring" that no individual may be denied employment solely on the basis of race, religion, sex, disability, color, national origin, or ancestry (R.C. 5709.832).
COMMENT
It appears that the bill does not include sections of the Revised Code that provide protection pertaining to only a limited number of protected characteristics.  For example, many of those sections protect only race, color, creed, national origin, or a combination of those characteristics.  The bill also does not include sections that deal with maintaining statistics based on certain characteristics.
HISTORY

ACTIONDATE
    Introduced
03-11-08


S0305-I-127.doc/jc




[1] It should be noted that not every covered characteristic listed in this sentence is necessarily listed in a prohibition in the OCRC Law.  For example, "familial status" is listed consistently in R.C. 4112.02, but not in R.C. 4112.021 (creditors and credit reporting agencies) where "marital status" is listed.
[2] This definition of "sexual orientation" applies throughout the bill.