Bill Text: OH HB456 | 2013-2014 | 130th General Assembly | Introduced

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Bill Title: To clarify that a discriminatory compensation decision that is unlawful under the Civil Rights Laws occurs each time compensation is paid pursuant to that decision.

Spectrum: Partisan Bill (Democrat 17-0)

Status: (Introduced - Dead) 2014-02-19 - To Judiciary [HB456 Detail]

Download: Ohio-2013-HB456-Introduced.html

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As Introduced

130th General Assembly Regular Session 2013-2014

H. B. No. 456

Representative Pillich 

Cosponsors: Representatives Antonio, Bishoff, Boyd, Clyde, Driehaus, Fedor, Heard, Phillips, Reece, Ramos, Hagan, R., Foley, Stinziano, Barborak, Sheehy, Lundy 

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A BILL

To amend section 4112.05 of the Revised Code to

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clarify that a discriminatory compensation

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decision that is unlawful under the Civil Rights

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Laws occurs each time compensation is paid

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pursuant to that decision.

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

Section 1. That section 4112.05 of the Revised Code be	6
amended to read as follows:	7

Sec. 4112.05.  (A) The commission, as provided in this	8
section, shall prevent any person from engaging in unlawful	9
discriminatory practices, provided that, before instituting the	10
formal hearing authorized by division (B) of this section, it	11
shall attempt, by informal methods of conference, conciliation,	12
and persuasion, to induce compliance with this chapter.	13

(B)(1) Any person may file a charge with the commission	14
alleging that another person has engaged or is engaging in an	15
unlawful discriminatory practice. In the case of a charge alleging	16
an unlawful discriminatory practice described in division (A),	17
(B), (C), (D), (E), (F), (G), (I), or (J) of section 4112.02 or in	18
section 4112.021 or 4112.022 of the Revised Code, the charge shall	19
be in writing and under oath and shall be filed with the	20
commission within six months after the alleged unlawful	21
discriminatory practice was committed. In the case of a charge	22
alleging an unlawful discriminatory practice described in division	23
(H) of section 4112.02 of the Revised Code, the charge shall be in	24
writing and under oath and shall be filed with the commission	25
within one year after the alleged unlawful discriminatory practice	26
was committed.	27

For the purposes of division (B)(1) of this section, an	28
unlawful discriminatory practice in compensation is committed when	29
one of the following occurs:	30

(a) A discriminatory compensation decision or other practice	31
is adopted;	32

(b) An individual becomes subject to a discriminatory	33
compensation decision or other practice;	34

(c) An individual is affected by application of a	35
discriminatory compensation decision or other practice, including	36
each time wages, benefits, or other compensation is paid,	37
resulting in whole or in part from a discriminatory compensation	38
decision or other practice.	39

(2) Upon receiving a charge, the commission may initiate a	40
preliminary investigation to determine whether it is probable that	41
an unlawful discriminatory practice has been or is being engaged	42
in. The commission also may conduct, upon its own initiative and	43
independent of the filing of any charges, a preliminary	44
investigation relating to any of the unlawful discriminatory	45
practices described in division (A), (B), (C), (D), (E), (F), (I),	46
or (J) of section 4112.02 or in section 4112.021 or 4112.022 of	47
the Revised Code. Prior to a notification of a complainant under	48
division (B)(4) of this section or prior to the commencement of	49
informal methods of conference, conciliation, and persuasion under	50
that division, the members of the commission and the officers and	51
employees of the commission shall not make public in any manner	52
and shall retain as confidential all information that was obtained	53
as a result of or that otherwise pertains to a preliminary	54
investigation other than one described in division (B)(3) of this	55
section.	56

(3)(a) Unless it is impracticable to do so and subject to its	57
authority under division (B)(3)(d) of this section, the commission	58
shall complete a preliminary investigation of a charge filed	59
pursuant to division (B)(1) of this section that alleges an	60
unlawful discriminatory practice described in division (H) of	61
section 4112.02 of the Revised Code, and shall take one of the	62
following actions, within one hundred days after the filing of the	63
charge:	64

(i) Notify the complainant and the respondent that it is not	65
probable that an unlawful discriminatory practice described in	66
division (H) of section 4112.02 of the Revised Code has been or is	67
being engaged in and that the commission will not issue a	68
complaint in the matter;	69

(ii) Initiate a complaint and schedule it for informal	70
methods of conference, conciliation, and persuasion;	71

(iii) Initiate a complaint and refer it to the attorney	72
general with a recommendation to seek a temporary or permanent	73
injunction or a temporary restraining order. If this action is	74
taken, the attorney general shall apply, as expeditiously as	75
possible after receipt of the complaint, to the court of common	76
pleas of the county in which the unlawful discriminatory practice	77
allegedly occurred for the appropriate injunction or order, and	78
the court shall hear and determine the application as	79
expeditiously as possible.	80

(b) If it is not practicable to comply with the requirements	81
of division (B)(3)(a) of this section within the one-hundred-day	82
period described in that division, the commission shall notify the	83
complainant and the respondent in writing of the reasons for the	84
noncompliance.	85

(c) Prior to the issuance of a complaint under division	86
(B)(3)(a)(ii) or (iii) of this section or prior to a notification	87
of the complainant and the respondent under division (B)(3)(a)(i)	88
of this section, the members of the commission and the officers	89
and employees of the commission shall not make public in any	90
manner and shall retain as confidential all information that was	91
obtained as a result of or that otherwise pertains to a	92
preliminary investigation of a charge filed pursuant to division	93
(B)(1) of this section that alleges an unlawful discriminatory	94
practice described in division (H) of section 4112.05 of the	95
Revised Code.	96

(d) Notwithstanding the types of action described in	97
divisions (B)(3)(a)(ii) and (iii) of this section, prior to the	98
issuance of a complaint or the referral of a complaint to the	99
attorney general and prior to endeavoring to eliminate an unlawful	100
discriminatory practice described in division (H) of section	101
4112.02 of the Revised Code by informal methods of conference,	102
conciliation, and persuasion, the commission may seek a temporary	103
or permanent injunction or a temporary restraining order in the	104
court of common pleas of the county in which the unlawful	105
discriminatory practice allegedly occurred.	106

(4) If the commission determines after a preliminary	107
investigation other than one described in division (B)(3) of this	108
section that it is not probable that an unlawful discriminatory	109
practice has been or is being engaged in, it shall notify any	110
complainant under division (B)(1) of this section that it has so	111
determined and that it will not issue a complaint in the matter.	112
If the commission determines after a preliminary investigation	113
other than the one described in division (B)(3) of this section	114
that it is probable that an unlawful discriminatory practice has	115
been or is being engaged in, it shall endeavor to eliminate the	116
practice by informal methods of conference, conciliation, and	117
persuasion.	118

(5) Nothing said or done during informal methods of	119
conference, conciliation, and persuasion under this section shall	120
be disclosed by any member of the commission or its staff or be	121
used as evidence in any subsequent hearing or other proceeding.	122
If, after a preliminary investigation and the use of informal	123
methods of conference, conciliation, and persuasion under this	124
section, the commission is satisfied that any unlawful	125
discriminatory practice will be eliminated, it may treat the	126
charge involved as being conciliated and enter that disposition on	127
the records of the commission. If the commission fails to effect	128
the elimination of an unlawful discriminatory practice by informal	129
methods of conference, conciliation, and persuasion under this	130
section and to obtain voluntary compliance with this chapter, the	131
commission shall issue and cause to be served upon any person,	132
including the respondent against whom a complainant has filed a	133
charge pursuant to division (B)(1) of this section, a complaint	134
stating the charges involved and containing a notice of an	135
opportunity for a hearing before the commission, a member of the	136
commission, or a hearing examiner at a place that is stated in the	137
notice and that is located within the county in which the alleged	138
unlawful discriminatory practice has occurred or is occurring or	139
in which the respondent resides or transacts business. The hearing	140
shall be held not less than thirty days after the service of the	141
complaint upon the complainant, the aggrieved persons other than	142
the complainant on whose behalf the complaint is issued, and the	143
respondent, unless the complainant, an aggrieved person, or the	144
respondent elects to proceed under division (A)(2) of section	145
4112.051 of the Revised Code when that division is applicable. If	146
a complaint pertains to an alleged unlawful discriminatory	147
practice described in division (H) of section 4112.02 of the	148
Revised Code, the complaint shall notify the complainant, an	149
aggrieved person, and the respondent of the right of the	150
complainant, an aggrieved person, or the respondent to elect to	151
proceed with the administrative hearing process under this section	152
or to proceed under division (A)(2) of section 4112.051 of the	153
Revised Code.	154

(6) The attorney general shall represent the commission at	155
any hearing held pursuant to division (B)(5) of this section and	156
shall present the evidence in support of the complaint.	157

(7) Any complaint issued pursuant to division (B)(5) of this	158
section after the filing of a charge under division (B)(1) of this	159
section shall be so issued within one year after the complainant	160
filed the charge with respect to an alleged unlawful	161
discriminatory practice.	162

(C) Any complaint issued pursuant to division (B) of this	163
section may be amended by the commission, a member of the	164
commission, or the hearing examiner conducting a hearing under	165
division (B) of this section, at any time prior to or during the	166
hearing. The respondent has the right to file an answer or an	167
amended answer to the original and amended complaints and to	168
appear at the hearing in person, by attorney, or otherwise to	169
examine and cross-examine witnesses.	170

(D) The complainant shall be a party to a hearing under	171
division (B) of this section, and any person who is an	172
indispensable party to a complete determination or settlement of a	173
question involved in the hearing shall be joined. Any aggrieved	174
person who has or claims an interest in the subject of the hearing	175
and in obtaining or preventing relief against the unlawful	176
discriminatory practices complained of shall be permitted to	177
appear only for the presentation of oral or written arguments, to	178
present evidence, perform direct and cross-examination, and be	179
represented by counsel. The commission shall adopt rules, in	180
accordance with Chapter 119. of the Revised Code governing the	181
authority granted under this division.	182

(E) In any hearing under division (B) of this section, the	183
commission, a member of the commission, or the hearing examiner	184
shall not be bound by the Rules of Evidence but, in ascertaining	185
the practices followed by the respondent, shall take into account	186
all reliable, probative, and substantial statistical or other	187
evidence produced at the hearing that may tend to prove the	188
existence of a predetermined pattern of employment or membership,	189
provided that nothing contained in this section shall be construed	190
to authorize or require any person to observe the proportion that	191
persons of any race, color, religion, sex, military status,	192
familial status, national origin, disability, age, or ancestry	193
bear to the total population or in accordance with any criterion	194
other than the individual qualifications of the applicant.	195

(F) The testimony taken at a hearing under division (B) of	196
this section shall be under oath and shall be reduced to writing	197
and filed with the commission. Thereafter, in its discretion, the	198
commission, upon the service of a notice upon the complainant and	199
the respondent that indicates an opportunity to be present, may	200
take further testimony or hear argument.	201

(G)(1) If, upon all reliable, probative, and substantial	202
evidence presented at a hearing under division (B) of this	203
section, the commission determines that the respondent has engaged	204
in, or is engaging in, any unlawful discriminatory practice,	205
whether against the complainant or others, the commission shall	206
state its findings of fact and conclusions of law and shall issue	207
and, subject to the provisions of Chapter 119. of the Revised	208
Code, cause to be served on the respondent an order requiring the	209
respondent to cease and desist from the unlawful discriminatory	210
practice, requiring the respondent to take any further affirmative	211
or other action that will effectuate the purposes of this chapter,	212
including, but not limited to, hiring, reinstatement, or upgrading	213
of employees with or without back pay, or admission or restoration	214
to union membership, and requiring the respondent to report to the	215
commission the manner of compliance. If the commission directs	216
payment of back pay, it shall make allowance for interim earnings.	217
If it finds a violation of division (H) of section 4112.02 of the	218
Revised Code, the commission additionally shall require the	219
respondent to pay actual damages and reasonable attorney's fees,	220
and may award to the complainant punitive damages as follows:	221

(a) If division (G)(1)(b) or (c) of this section does not	222
apply, punitive damages in an amount not to exceed ten thousand	223
dollars;	224

(b) If division (G)(1)(c) of this section does not apply and	225
if the respondent has been determined by a final order of the	226
commission or by a final judgment of a court to have committed one	227
violation of division (H) of section 4112.02 of the Revised Code	228
during the five-year period immediately preceding the date on	229
which a complaint was issued pursuant to division (B) of this	230
section, punitive damages in an amount not to exceed twenty-five	231
thousand dollars;	232

(c) If the respondent has been determined by a final order of	233
the commission or by a final judgment of a court to have committed	234
two or more violations of division (H) of section 4112.02 of the	235
Revised Code during the seven-year period immediately preceding	236
the date on which a complaint was issued pursuant to division (B)	237
of this section, punitive damages in an amount not to exceed fifty	238
thousand dollars.	239

(2) Upon the submission of reports of compliance, the	240
commission may issue a declaratory order stating that the	241
respondent has ceased to engage in particular unlawful	242
discriminatory practices.	243

(3) In relation to an unlawful discriminatory practice	244
relating to compensation, liability may accrue and the complainant	245
may obtain relief, including recovery of back pay for up to two	246
years preceding the filing of the charge, if the unlawful	247
discriminatory practice that occurred during the charge filing	248
period described in division (B)(1) of this section is similar or	249
related to an unlawful employment practice with regard to	250
discrimination in compensation that occurred outside the time for	251
filing a charge.	252

(H) If the commission finds that no probable cause exists for	253
crediting charges of unlawful discriminatory practices or if, upon	254
all the evidence presented at a hearing under division (B) of this	255
section on a charge, the commission finds that a respondent has	256
not engaged in any unlawful discriminatory practice against the	257
complainant or others, it shall state its findings of fact and	258
shall issue and cause to be served on the complainant an order	259
dismissing the complaint as to the respondent. A copy of the order	260
shall be delivered in all cases to the attorney general and any	261
other public officers whom the commission considers proper.	262

(I) Until the time period for appeal set forth in division	263
(H) of section 4112.06 of the Revised Code expires, the	264
commission, subject to the provisions of Chapter 119. of the	265
Revised Code, at any time, upon reasonable notice, and in the	266
manner it considers proper, may modify or set aside, in whole or	267
in part, any finding or order made by it under this section.	268

Section 2. That existing section 4112.05 of the Revised Code	269
is hereby repealed.	270

Section 3. (A) The General Assembly hereby determines and	271
declares that it recognizes and finds all of the following:	272

(1) The United States Supreme Court in Ledbetter v. Goodyear	273
Tire & Rubber Co., 550 U.S. 618 (2007), significantly impaired	274
statutory protections against discrimination in compensation that	275
Congress established and that have been bedrock principles of	276
American law for decades. The Ledbetter decision undermined those	277
statutory protections by unduly restricting the time period in	278
which victims of discrimination could challenge and recover for	279
discriminatory compensation decisions or other practices, contrary	280
to the intent of Congress.	281

(2) The limitation imposed by the Court on the filing of	282
discriminatory compensation claims ignored the reality of wage	283
discrimination and was at odds with the robust application of the	284
Civil Rights Laws that Congress intended.	285

(B) The General Assembly hereby declares that, in amending	286
section 4112.05 of the Revised Code to clarify that a	287
discriminatory compensation decision that is unlawful under the	288
Ohio Civil Rights Laws occurs each time compensation is paid	289
pursuant to that decision, it is the General Assembly's intent to	290
protect the safety and general welfare of the people of this state	291
by codifying at the state level the "Lilly Ledbetter Fair Pay Act	292
of 2009," Pub. Law No. 111-2, 123 Stat. 5. Consequently, the	293
amendments made by this act are remedial and not punitive in	294
nature and shall take effect as if enacted on May 28, 2007, and	295
apply to all claims of discrimination in compensation under	296
Chapter 4112. of the Revised Code that are pending on or after	297
that date.	298