Chapter 4112-3 Procedural Provisions

4112-3-01 Charge.

(A) Who may file. Any person may make, sign, and file with the commission at any of its offices a written charge. Assistance in drafting and filing charges shall be available to persons at all commission offices.

(B) Form of charge.

(1) For charges other than those governed by paragraph (B)(2) of this rule, the charge shall be in writing, the original being signed and sworn to or affirmed by the complainant before a notary public or other person duly authorized by law to administer oaths. Notarial service, when available, shall be furnished without charge by the commission.

(2) For charges that allege a violation or violations of division (H) of section 4112.02 of the Revised Code, the charge shall be in writing, the original being signed and affirmed by the complainant. The affirmation shall state: "I declare under penalty of perjury that the foregoing is true and correct."

(C) Contents. A charge shall contain the following:

(1) The full name and address of the person making the charge.

(2) The full name and address of the person against whom the charge is made.

(3) A concise statement of the facts which the complainant believes indicates an unlawful discriminatory practice.

(4) The date or dates of the alleged unlawful discriminatory practice; or if the alleged unlawful discriminatory practice is of a continuing nature, the dates between which said continuing acts are alleged to have occurred.

(D) Time of filing.

(1) Charges alleging unlawful discriminatory practices under divisions (A), (B), (C), (D), (E), (F), (G), (I), and (J) of section 4112.02 of the Revised Code, and charges alleging violations of sections 4112.021 and 4112.022 of the Revised Code, must be filed within six months after the unlawful discriminatory practices alleged in the charge were committed. Charges alleging violations of division (H) of section 4112.02 of the Revised Code must be filed within one year after the unlawful discriminatory practices alleged in the charge were committed.

(2) In cases of recurring or continuing violations, the filing period begins to run anew with each new discriminatory act or with each new day of the continuing violation.

(3) A charge filed with either the U. S.

equal employment opportunity commission (EEOC) or the U. S. department of housing and urban development (HUD) which lists the commission as the deferral/referral agency, or which is received by the commission for investigation, is deemed filed with the commission on the date the charge is received at one of the commission's offices. A charge filed with the EEOC or with HUD is deemed timely filed with the commission provided that the charge is filed with EEOC within six months of the alleged discriminatory acts or with HUD within one year of the alleged unlawful discriminatory acts.

(E) Place of filing. A charge may be filed with the commission at any of its offices.

(F) Forms. Charge forms may be obtained at any of the offices of the commission, but the use of any particular form is not required for the proper filing of a charge.

(G) Amendment of charges. A charge may be amended to cure technical defects or omissions, including failure to swear or affirm to the charge, or to clarify and amplify allegations made therein, or to add or substitute respondents or complainants. Such amendments relate back to the original filing date. However, an amendment alleging additional acts constituting unlawful discriminatory practices not related to or growing out of the subject matter of the original charge will be permitted only where, at the date of the amendment, the allegation could have been timely filed as a separate charge.

(H) Joinder of parties in same charge. Persons complaining of unlawful discriminatory practices arising out of the same transaction, occurrence, or succession or series of transactions or occurrences may join as complainants in a single charge. All persons charged with unlawful discriminatory practices arising out of the same transaction, occurrence, or succession or series of transactions or occurrences may be joined as respondents in the same charge. Any person may be joined as a party if in the person's absence complete relief cannot be accorded among those who are already parties.

(I) Withdrawal of charge. A charge or any part of a charge may be withdrawn only with the written consent of the commission at any time prior to the issuance of a complaint by the commission or final disposition of the charge. The commission may delegate the authority to the director or the director's designee, to grant consent to a request to withdraw a charge, other than a commissioner charge, where the withdrawal of charge will not defeat the purpose of Chapter 4112. of the Revised Code. If substantial investigative work has been completed when the request to withdraw a charge is received, the commission may proceed to make a finding of probable cause, no probable cause, or other appropriate finding, notwithstanding the pending request to withdraw the charge.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 7/12/89; 7/1/94; 8/10/97; 10/17/02

4112-3-02 Fact finding conferences.

A commission staff member may be assigned to initiate contact with the complainant and respondent, and conduct a fact-finding conference between the complainant and respondent or their representatives to examine the factual basis behind the charge.

Any party who participates in a fact-finding conference may be accompanied by legal counsel, whose role shall be limited to advising his/her client, unless agreed to by all parties present, including the commission staff member conducting the conference.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 9/1/92 (Emer.); 10/2/92; 10/17/02

4112-3-03 Preliminary investigation, probable cause, conciliation, no probable cause.

(A) Preliminary investigation. After the receipt of a charge, the director or the director's designee may assign a member or members of the commission staff to conduct a preliminary investigation. Such investigation shall be designed to obtain necessary information upon which the commission can determine whether it is probable that any unlawful discriminatory practices have been or are being engaged in by the respondent. The investigation of any alleged unlawful discriminatory practices by the commission need not be limited to the particular facts or issues raised in any charge affidavit.

(B) Probable cause determination. Where the facts indicate that it is probable that any unlawful discriminatory practices have been or are being engaged in, the director or the director's designee may refer the matter to the commission and recommend that the commission approve a finding of probable cause and authorize proceeding with conciliation. The commission may delegate authority to the director or the director's designee to make a finding of probable cause and issue a letter of determination and serve a copy upon the parties.

(C) Conciliation. When the commission determines such probable cause does exist, the commission shall instruct the director or the director's designee to endeavor to eliminate all unlawful discriminatory practices by conference, conciliation and persuasion.

(D) Conciliation agreement. If, as a result of conference, conciliation, and persuasion the commission is able to provide for voluntary compliance with sections 4112.01 to 4112.08 of the Revised Code, and to effect the elimination of any unlawful discriminatory practices, whether against the complainant or others, it may prepare a conciliation agreement which shall set forth all measures to be taken by the parties thereto, including provisions for affirmative and other relief, goals and timetables, and compliance reports. The conciliation agreement shall be signed by the persons to be bound by the agreement and a representative of the commission. An executed conciliation agreement is a final order of the commission for the purposes of section 4112.06 of the Revised Code.

(E) Failure of conciliation. Failure by a respondent to agree to a proposed conciliation agreement or to submit a counter proposal acceptable to the commission shall constitute prima facie evidence of a failure, within the meaning of division (A) of section 4112.05 of the Revised Code, of informal methods of conference, conciliation and persuasion.

(F) No probable cause determination and dismissal. Where the facts, as determined during the preliminary investigation indicate that it is not probable that any unlawful discriminatory practices have been or are being engaged in, the director or the director's designee shall refer the charge to the commission with a recommendation of dismissal. The commission may thereupon dismiss the charge and serve on the complainant and other parties notification of its action. The commission may delegate authority to the director or the director's designee to make a finding of no probable cause and issue a letter of determination and serve a copy upon the parties.

(G) Investigation without charge. When preliminary investigations are initiated by the commission on its own motion, no specific charge need be filed with the commission. The commission shall promptly notify the respondent in writing of such investigation.

(H) Compliance reports. The commission may require any party to submit to it such compliance reports as the commission deems necessary showing compliance with the terms of any conciliation agreement.

(I) Investigation after conciliation. The commission may make compliance investigations regarding conciliation agreements, and cease and desist orders, and take appropriate action according to its findings, pursuant to paragraphs (B)(2) and (B)(3) of rule 4112-3-10 of the Administrative Code.

(J) Non-disclosure. Nothing said or done during endeavors at conciliation shall be disclosed by any member of the commission or its staff to be used as evidence in any subsequent proceeding unless the respondent asserts that the commission's duty to attempt conciliation pursuant to section 4112.05 of the Revised Code has not been met. The commission may, however, publish the terms of conciliation of any charge which has been conciliated.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 9/1/92 (Emer.); 10/2/92; 10/17/02

4112-3-04 Reconsideration by the commission.

(A) Procedure for applying for reconsideration. Any party may apply to the commission for reconsideration of a determination of probable cause or any final commission determination. Such application must be in writing, state specifically the grounds on which it is based, and be filed, along with all supporting materials, with the commission at its central office compliance department in Columbus within ten days from the date of service of the notice of determination. The commission shall serve notice of such application for reconsideration on all other parties to the matter in which the application for reconsideration is filed.

(B) Determination of application for reconsideration.

The commission may, in its discretion, accept or reject an application for reconsideration.

(1) If the commission rejects an application for reconsideration, it shall record its action accordingly and shall notify the parties.

(2) If the commission accepts an application for reconsideration, it shall make a determination and shall notify the parties. The commission may, in its discretion, hear one or more of the parties.

(C) Reconsideration by motion of the commission. The commission may, upon its own motion, reconsider any determination. If the commission reconsiders a determination on its own motion, it shall record its action accordingly and notify the parties.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 7/12/89; 7/1/94; 8/10/97; 10/17/02

4112-3-05 Complaint and notice of hearing.

(A) Issuance of complaint. If the commission determines that it is probable that any unlawful discriminatory practices have been or are being engaged in against the complainant or others, the commission shall serve upon the complainant, any aggrieved person other than the complainant on whose behalf the complaint is issued and the respondent or their attorneys of record, if any, a complaint containing a notice of hearing. The commission may delegate authority to the director or the director's designee to issue a complaint on behalf of the commission.

(B) Contents of complaint. Any complaint issued by, the commission shall contain the following:

(1) An identification of the specific unlawful discriminatory practice or practices alleged;

(2) A short and plain statement of the factual allegations showing the basis for the alleged unlawful discriminatory practice or practices;

(3) A request for relief, setting out the terms or substance of the order which would be appropriate to enter if the matters alleged in the complaint are proven to be true by reliable, probative and substantial evidence.

(C) Contents of notice of hearing and right of election.

(1) The notice of hearing shall state the date of hearing which shall be 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 notice may omit the date and time of hearing with an explanation that the date and time will be set by later notice.

(2) Where the complaint alleges an unlawful discriminatory practice described in division (H) of section 4112.02 of the Revised Code, the aggrieved person and the respondent shall be provided with a notice of the right to elect to proceed with the administrative hearing process under this rule or to proceed under division (A)(2) of section 4112.051 of the Revised Code.

(D) Amendment of complaint. Rule 15(C) of the "Ohio Rules of Civil Procedure" shall govern whether an amendment relates back to the date of the filing of the earlier complaint. Such amended complaint shall be served on all original parties and new parties added or substituted through the amended complaint.

(E) Joinder of parties. Any person may be joined as a party to a proceeding before the commission in accordance with the standards set forth in Rules 19 through 21 of the "Ohio Rules of Civil Procedure."

(F) Consolidation of complaints. The commission or administrative law judge may, in their discretion, consolidate two or more complaints into a single proceeding at any time prior to public hearing.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 10/17/02

4112-3-06 Answer.

(A) Time of filing answer. A respondent against whom a complaint has been issued and on whom a notice of hearing and copy of such complaint has been served shall file a written answer within twenty-eight days from the date of service of such complaint and notice of hearing.

(B) Place and manner of filing. The answer shall be filed in duplicate at the central office compliance department of the commission in Columbus at 30 E. Broad Street, 5th Floor, Columbus, Ohio 43215 and served on the commission's attorney and all other parties to the proceeding. The answer may be filed by regular mail, delivery service or personal delivery.

(C) Extension of time. Upon application, the commission or administrative law judge, for good cause shown, may extend the time within which the answer may be filed. No application shall be granted within thirty days prior to the date set for the hearing.

(D) Form of answer. The answer shall be in writing and shall contain the address , business e-mail address and telephone and facsimile numbers of the respondent, and if respondent is represented by an attorney, the name, address , business e-mail address and telephone and facsimile numbers of said attorney. The answer shall contain an admission or denial of each and every allegation of the complaint, including a denial of any knowledge or information sufficient to form a belief concerning an allegation. Any allegation in the complaint which is not denied or admitted in the answer shall be deemed admitted. The answer shall also contain a statement of any matter constituting a defense. An affirmative defense not first set forth by answer may not be raised at hearing. Any allegation of a new matter contained in an answer shall be deemed denied without the necessity of a reply.

(E) Amendment of answer. The respondent may apply to the commission or the administrative law judge to amend an answer. Upon application, the commission or the administrative law judge, for good cause shown, may permit a respondent to file an amended answer. No amended answer shall be accepted for filing within thirty days of the date set for the hearing. Whenever a complaint is amended, the respondent shall be permitted to file an amended answer in the same manner as the original answer was filed.

(F) Failure to file answer. A respondent who has not filed an answer as provided in paragraphs (A) to (E) of this rule shall be deemed in default and the allegations of the complaint shall be deemed admitted. Upon application duly made to the commission or the administrative law judge, such default may be set aside for the following reasons:

(1) Mistake,

(2) Surprise, or

(3) Excusable neglect.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 10/17/02

4112-3-07 Hearing.

(A) Scope of rule. This rule governs the practice and procedure of administrative hearings conducted by the commission.

(B) Administrative law judges. The commission may employ or appoint such individuals as the commission may, from time to time, determine necessary to act as administrative law judges.

(C) Appearances of parties.

(1) As soon as practicable after the issuance of a complaint and the notice of hearing the commission and respondent shall each designate in writing one person to act as their representative for all matters relevant to the complaint and hearing. A copy of this designation shall be filed with the administrative law judge and served on all parties. The designation shall include the address, email address and telephone and facsimile numbers of all representatives.

(2) An attorney may not withdraw his or her designation for a party without leave of the administrative law judge.

(3) An attorney who is not admitted to practice law in Ohio may be granted leave to appear on behalf of a party on a pro hac vice basis after they have satisfied the requirements specified by the supreme court of Ohio.

(4) The complainant shall be a party to the proceeding and may be present at the hearing. Each respondent may appear at the hearing through one designated representative . Except as provided under paragraph (F) of rule 4112-3-06 of the Administrative Code, the respondent may examine and cross-examine witnesses and the complainant, and may introduce documentary or other evidence. Complainant and respondent's representative may be called to testify or be cross-examined by opposing counsel and may sit at the respective counsel tables despite a separation of witnesses.

(5) Where the complaint alleges an unlawful discriminatory practice described in division (H) of section 4112.02 of the Revised Code, an aggrieved person who intends to examine and cross-examine witnesses, introduce documentary or other evidence, or otherwise participate in the presentation of evidence in support of the complaint, must file and serve a designation as described in paragraph (C)(1) of this rule.

(6) A designation filed beyond the time period set forth in paragraph (C)(1) of this rule may be considered and accepted by the administrative law judge, provided that accepting the designation is necessary to effectuate justice between the parties and will neither affect the substantial rights of, nor unduly prejudice, any of the parties.

(D) Conduct of hearings. Hearings shall be conducted consistent with this rule by the full

commission or one or more commissioners or by one or more administrative law judges or any combination of the above who are designated by the commission for such purpose. If more than one commissioner or administrative law judge conducts a hearing, one of them shall be designated by the commission as the presiding member.

(E) Pre-hearing conferences. At any time before the hearing begins, the administrative law judge may direct the parties to participate in one or more pre-hearing conferences, submit pre-hearing memoranda or both. The pre-hearing conference may be conducted by telephone or at any place selected by the administrative law judge.

(1) The purpose of such conference shall be to simplify and clarify the issues and to address any other matter that will tend to expedite the proceedings, including the avoidance of undue repetition or complication in the presentation of evidence or argument. These matters may include but are not limited to:

(a) The necessity or desirability of amending the complaint or answer ;

(b) The possibility of obtaining stipulations of fact, or admissions of undisputed facts. The commission expects the parties to stipulate evidence to the fullest extent to which complete or qualified agreement can be reached, including all material facts that are not or fairly should not be in dispute ;

(c) Reviewing the contents of and establishing the authenticity of documents ;

(d) Requests for the issuance of subpoenas ;

(e) Schedules for taking of depositions and the use of depositions in the proceeding ;

(f) Schedule for the completion of discovery ;

(g) An agreement limiting the number of expert witnesses and other witnesses and limiting the subject matter of their testimony ;

(h) The disclosure of the names and addresses of witnesses ;

(i) The exchange of documents intended to be offered in evidence ; and

(j) The possibility of settlement.

(2) Whenever a pre-hearing conference is held, the administrative law judge, at the request of any party, shall issue an order which recites the matters discussed, the agreements reached, and the rulings made at the pre-hearing conference. The order shall be served on the parties and shall be filed in the record of the proceedings on the complaint.

(3) Should a party fail to comply with the regulations of the commission regarding pre-hearing conferences or submission of pre-hearing memorandums, after being served with due notice and an opportunity to comply, said failure may constitute a waiver of all objections to the agreements reached, if any, and any order or ruling with respect thereto.

(F) Pre-hearing motions.

(1) Unless the commission determines otherwise in a particular case, and prior to the hearing on any complaint, all motions made to the commission relating to the complaint and the hearing thereon shall be filed with and ruled upon by the administrative law judge. Recommendations by the administrative law judge to grant motions to dismiss shall be forwarded to the commission for consideration.

(2) Every motion, memorandum and supporting document filed with the administrative law judge shall be served on all the parties or their representatives with proof of service attached.

(3) All motions shall contain a memorandum stating the reasons in support of the motion and citing the authorities upon which the movant relies. If the motion requires consideration of facts not appearing in the record, the movant shall also serve and file copies of all affidavits, depositions or other documentary evidence they desire to present in support of the motion. Any party opposing a motion may file a responsive memorandum within fourteen days after service of the motion. The movant may file a reply within seven days after service of the responsive memorandum. Where the circumstances warrant and upon equitable terms and conditions, the administrative law judge may modify the time periods specified in this rule.

(G) Time of hearing. A hearing shall be conducted as set forth in the notice of hearing, except as such may be changed by the administrative law judge as set forth below:

(1) The administrative law judge may postpone or continue any hearing upon his or her own motion or upon motion of a party for good cause shown and proper diligence.

(2) A motion for postponement served less than five days in advance of a hearing or made at the hearing shall not be granted unless the movant demonstrates that an extraordinary situation exists which could not have been anticipated and which would justify the granting of the postponement.

(H) Procedure at hearings.

(1) Except as otherwise provided in this paragraph, the evidence in support of the complaint shall be presented at the hearing by counsel for the commission pursuant to division (B)(5) of section 4112.05 and section 4112.10 of the Revised Code.

(a) If an aggrieved person files a designation in accordance with paragraph (C)(5) of this rule, the evidence in support of the complaint shall be presented by counsel for the commission and by the aggrieved person or their counsel.

Notwithstanding the participation of the aggrieved person, counsel for the commission shall serve as lead counsel and retains the authority to manage and direct the manner of case preparation and presentation of evidence in support of the complaint at the hearing, including but not limited to the selection and use of expert and lay witnesses, as necessary or appropriate in pursuit of the public interest and the accomplishment of the purposes of Chapter 4112. of the Revised Code.

(b) If the aggrieved person does not file a designation in accordance with paragraph (C)(5) of this rule, the evidence in support of the complaint shall be presented solely by counsel for the commission.

(2) The person or persons conducting a hearing shall not be bound by the Ohio rules of evidence, but shall take into account all reliable, probative and substantial evidence. Irrelevant, immaterial, unreliable, and unduly repetitious evidence may be excluded.

(3) The administrative law judge may examine witnesses, admit or exclude testimony or other evidence, rule upon objections, and take such other actions as are necessary and proper to conduct the hearing.

(4) Where hearings are conducted by three or more commissioners and/or administrative law judges, all rulings and determinations shall be made by majority rule.

(5) Written stipulations of fact may be introduced in evidence, if signed by the parties to be bound thereby, or their representative. Oral stipulations may be made on the record at the hearing.

(6) The administrative law judge may continue a hearing from day-to-day or adjourn it to a different place as is permitted by law, or by agreement of the parties, adjourn it to a later date.

(7) The administrative law judge shall permit the parties or their representatives, and other persons permitted to appear pursuant to paragraph (C) of this rule to argue orally and/or to submit written briefs. The commission 's attorney may file a written brief within twenty-one days after receipt by the commission's attorney of the transcript of the public hearing. The respondent and complainant or their representatives may file briefs within twenty-one days of being served with the brief of the commission's attorney, and the commission's attorney may file a reply brief within ten days of being served with the brief of the respondent. These time periods may be extended as the administrative law judge may determine for good cause shown.

(8) The testimony taken at the hearing shall be under oath and shall be reduced to writing and filed with the commission. Thereafter, at its discretion, the commission, upon notice to the parties, may take further testimony or hear arguments or order an administrative law judge to do so. The parties may be present and be heard at such proceeding.

(9) Standards of conduct and supervision:

(a) All persons appearing before the commission or an administrative law judge shall conform to the standards of ethical conduct required in the courts of the state of Ohio.

(b) An administrative law judge shall, for good cause shown, bar from participation in a particular proceeding any person who refuses to comply with their directions or who engages in disorderly conduct, dilatory tactics, or contemptuous language in the course of the proceeding.

(10) All hearings shall be open to the public, unless for good cause, the commission shall decide otherwise.

(11) Any person appearing before the commission as a non-party witness in any public hearing shall have a right to be accompanied, represented and advised by an attorney whose participation in the hearing, or other proceeding, shall be limited to the protection of the rights of the witness and who may not examine or cross-examine witnesses.

(I) Transcript of hearing.

(1) A record shall be made of all hearings before an administrative law judge. Such record may be recorded by stenographic means, by the use of audio-electronic recording devices or by video recording devices as the administrative law judge may direct. Hearings before an administrative law judge which are recorded electronically shall be transcribed into written form. Opening and closing statements shall not be included in the transcripts unless the administrative law judge so directs.

(2) A party may request the administrative law judge to provide a court reporter for a hearing if the administrative law judge has not elected to do so. In such case, the requesting party shall be responsible for payment of the court reporter's fees and expenses, including the cost of production of the transcript, the original of which shall become the official transcript.

(J) Post-hearing motions. Unless the commission determines otherwise in a particular case, all post-hearing motions made before issuance of the administrative law judge's report shall be addressed to the administrative law judge and shall be ruled upon by him or her subject to commission approval, modification or disapproval pursuant to rule 4112-3-09 of the Administrative Code.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05 , 4112.051
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 10/17/02

4112-3-08 Transcript of the record.

The transcript of the record at any hearing shall consist of the notice of hearing, the pleadings, the stenographic transcript of the testimony taken at the hearing, the exhibits and depositions offered in evidence, proffers of evidence, written applications, orders, motions, memoranda, stipulations, briefs, the findings of fact, conclusions of law and recommendations of the administrative law judge, the objections to the administrative law judge's recommendation, and the responses thereto and final orders of the commission.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/14/71; 11/15/77; 7/12/89; 10/17/02

4112-3-09 Report of findings.

(A) Written report and recommendation. Upon due consideration of the evidence adduced at the hearing and the arguments made, the administrative law judge shall submit to the commission a written report setting forth findings of fact, conclusions of law and a recommendation of action to be taken by the commission.

(B) Objections. Any party or aggrieved person who has met the requirements of paragraph (C)(1) of rule 4112-3-07 of the Administrative Code may file and serve a written statement of objections to such written report and recommendation to the commission's central office compliance department. Written statements of objections shall be considered by the commission before approving, modifying or disapproving the administrative law judge's recommendation. Objections must be filed within twenty days from the date the administrative law judge's report was served.

(1) Any party or aggrieved person who has met the requirements of paragraph (C)(1) of rule 4112-3-07 of the Administrative Code may file a written response to objections. A response to objections must be filed with fourteen days from the date the objections were served.

(2) Objections and responses to objections must be filed with the compliance department of the commission at "30 E. Broad Street, 5th Floor, Columbus, Ohio 43215" and served on all parties.

(C) Consideration of written report and recommendation. The commission shall consider the written report and recommendation of the administrative law judge at any regular or special meeting . The commission may approve, modify, or disapprove the written report and recommendation of the administrative law judge and shall issue its order accordingly.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/15/77; 7/12/89; 1/11/98; 10/17/02

4112-3-10 Orders.

(A) Content. The final order of the commission issued after a hearing shall be accompanied by findings of fact and conclusions of law.

(B) Issuance of a cease and desist order.

(1) If upon all the reliable, probative, and substantial evidence the commission determines that a respondent has engaged in, or is engaging in, any unlawful discriminatory practices, whether against the complainant or others, the commission shall serve on the respondent an order containing findings of fact and conclusions of law, and requiring the respondent to cease and desist from such unlawful discriminatory practices and to take any further affirmative or other action as will effectuate the purposes of Chapter 4112. of the Revised Code.

(a) Affirmative or other action may include, but is not limited to, hiring, reinstatement, or upgrading of employees with or without back pay; admission or restoration to union membership or to training programs with utilization of objective criteria for admission; admission to places of public accommodation; the sale or lease of housing accommodations and lending money upon equal terms and conditions; cancellation, rescission or revocation of a contract, deed, lease or other document transferring any housing accommodation which is the subject of a charge or complaint of unlawful discrimination to a person who had notice, prior to the transfer or execution of the agreement to make the transfer, that a charge or complaint under division (H) of section 4112.02 of the Revised Code, was filed or issued.

(b) If a respondent is operating by virtue of any license or permit issued by the state or a political subdivision or agency thereof, or is holding a contract or subcontract with the state or a political subdivision or agency thereof, and the commission determines after a hearing that the respondent has engaged in or is engaging in any unlawful discriminatory practices, the commission shall send a certified copy of its findings and order to the licensing or contracting authority.

(2) At any time during which its order is in effect the commission may investigate whether the terms of the order are being complied with. Upon a determination that the terms of the order are not being complied with, the commission may take appropriate action to assure compliance including, but not limited to, petitioning a common pleas court for its enforcement. Upon a determination that the order is being complied with and all unlawful discriminatory practices have been eliminated, the commission may issue a declaratory order stating that the respondent has ceased to engage in unlawful discriminatory practices. The issuance of a declaratory order shall not affect the requirement of any respondent to submit such compliance reports as the commission may direct.

(3) The commission and the respondent may at any time enter into a written conciliation agreement which shall also constitute a cease and desist order of the commission. Consent orders shall include an express provision that the respondent intends to be legally bound thereby and agrees to waive public hearing. Consent and cease and desist orders shall have the same force and effect as a final order of the commission entered after hearing and may be filed by the commission for enforcement purposes in the appropriate common pleas court pursuant to section 4112.06 of the Revised Code.

(C) Issuance of dismissal order. If upon all the reliable, probative and substantial evidence the commission finds that a respondent has not engaged in any unlawful discriminatory practices against the complainant or others, it shall serve on the parties an order dismissing the complaint as to that respondent.

(D) Service. Copies of orders, accompanied by a notice of the statutory right to judicial review, shall be served on all parties, and their representatives.

(E) Filing of orders. Final orders of the commission issued after a hearing shall be filed in the principal office of the commission in the city of Columbus and shall be open to public inspection during regular office hours of the commission.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 9/1/92 (Emer.); 10/2/92; 8/10/97; 10/17/02

4112-3-11 Reconsideration of final orders.

(A) The commission, on its own motion or by motion of any party, may set aside any final order and, after reasonable notice has been given, take such action as it may deem necessary, including reinstating or modifying in whole or in part any finding or order previously made by it.

(B) In reconsidering any final order , the commission may consider the following:

(1) Mistake, inadvertence, surprise or excusable neglect;

(2) Newly discovered evidence which by due diligence could not have been discovered prior to the public hearing;

(3) Fraud, misrepresentation or other misconduct of a party; or

(4) Any other reason for setting aside in whole or in part the final order previously issued.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 9/1/92 (Emer.); 10/2/92; 10/17/02

4112-3-12 Discovery.

(A) In general. The commission and respondent shall both enjoy the same rights of discovery as are provided for in division (B)(3) of section 4112.04 of the Revised Code, and in rules 26 through 37 of theOhio Rules of Civil Procedure except to the extent that the civil rules by their nature would be inapplicable or Chapter 4112. of the Revised Code or this rule provides otherwise .

All costs associated with discovery shall be paid by the party conducting or seeking discovery.

(B) Evidence of damages. Except as otherwise ordered by the administrative law judge, a party or aggrieved person shall, upon proper discovery request, provide a computation of each category of damages claimed or incurred by a party or aggrieved person and a copy of, or a description by category and location of, all documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.

(C) Except as set forth in paragraph (A) of this rule, an administrative law judge has the discretion to control the scope of discovery, including, but not limited to, issuing protective orders on his or her own motion.

(D) Sanctions. If a party or aggrieved person fails to provide or permit discovery, the party seeking discovery may file a motion to compel discovery. If the motion is granted, in whole or in part, and the party or aggrieved person fails to produce the discovery as ordered, the administrative law judge may take such action as is just, including, but not limited to, the following:

(1) Inferring that the admission, testimony, document or other evidence would have been adverse to the party or aggrieved person;

(2) Ordering that, for purposes of the adjudication, the matters regarding which the order was made shall be taken to be established in accordance with the claim of the party obtaining the order;

(3) Prohibiting the party or aggrieved person failing to comply with the order from introducing evidence concerning, or otherwise relying upon, documents or other evidence withheld;

(4) Ordering that the party or aggrieved person withholding discovery not introduce into evidence, or otherwise use in the hearing, information obtained in discovery;

(5) Permitting the requesting party to introduce secondary evidence concerning the information sought;

(6) Striking any appropriate part of the pleadings or other submissions of the party or aggrieved person failing to comply with such order;

(7) Recommending dismissal of the complaint for failure to cooperate; or

(8) Taking such other action as may be appropriate.

(E) Any sanctions taken against a complainant or aggrieved person shall not impact the commission's ability to present evidence in any manner other than excluding the testimony of the sanctioned complainant or aggrieved person.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 7/12/89; 10/17/02

4112-3-13 Subpoenas.

(A) Issuance of subpoenas. A commissioner may issue a subpoena to compel the attendance of witnesses or the production of evidence, including, but not limited to, books, records, correspondence or other documents relating to any matter under investigation by the commission or as otherwise permitted under Chapter 4112 of the Revised Code. The director or the director's designee may sign and issue subpoenas on behalf of the commission. Subpoenas issued on behalf of the commission for a public hearing may be issued by an administrative law judge. Subpoenas issued under this rule shall be governed by division (B)(3) of section 4112.04 of the Revised Code, the "Ohio Rules of Civil Procedure," and rule 4112-3-12 of the Administrative Code.

(B) Issuance of subpoena at the request of respondent. Subpoenas shall be issued upon receipt of a written request from a respondent or respondent's representative which identifies the case caption and complaint number and contains the name and address of the person to be served. Subpoena requests for the production of documents must specify the documents to be produced. Subpoenas issued at the request of a respondent shall contain the name and address of the respondent and shall state that they were issued at the respondent's request. Subpoenas issued on behalf of a respondent shall be sent to the respondent and served by the respondent, consistent with the "Ohio Rules of Civil Procedure."

(C) Fees. Where a subpoena or subpoena for production of evidence is issued upon the application of the respondent, the cost of service, witness and mileage fees shall be borne by the respondent. Such witness and mileage fees shall be the same as paid by the common pleas courts of Ohio.

(D) Failure to obey subpoena. On the failure of any person to obey a subpoena, the commission may make application to the common pleas court of the county in which the witness resides, was served or transacts business, for an order from the court for such person to show cause why he or she shall not be held in contempt and such further relief as may be appropriate.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 7/12/89; 8/10/97; 10/17/02

4112-3-14 Miscellaneous motions or petitions.

(A) All motions and petitions made to the commission, except motions governed by paragraph (F) or ( J) of rule 4112-3-07 of the Administrative Code, shall contain a memorandum stating the reasons in support of the motion or petition and citing the authorities upon which the movant or petitioner relies. If the motion or petition requires consideration of facts not appearing in the record, the movant or petitioner shall also serve and file copies of all affidavits, depositions or other documentary evidence to be considered in support of the motion or petition.

(1) Any party opposing a motion or petition may file a responsive memorandum within seven days after service of the motion or petition. Where the circumstances warrant and upon equitable terms and conditions, the time period for filing a responsive memorandum may be extended by the commission.

(2) No reply or other memoranda may be filed except by special permission of the commission.

(B) Supporting memorandum required. The movant shall file with his or her motion a memorandum stating the reasons in support of the motion and citing the authorities upon which the movant relies. Every motion or petition and responsive memorandum shall be filed with the compliance department of the commission at "30 E. Broad Street, 5th Floor, Columbus, Ohio 43215" and served on all parties, with proof of service attached.

(C) Oral arguments will not be permitted except upon leave of the commission after a written request and proper showing by the movant or petitioner. The time of hearing and length of oral argument on a motion or petition filed under this rule shall be fixed by the commission.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/71; 11/15/77; 12/23/79; 7/12/89; 8/10/97; 10/17/02

4112-3-15 Application for bona fide occupational qualification.

(A) Application. Any respondent seeking a bona fide occupational qualification (BFOQ) pursuant to division (E) of section 4112.02 of the Revised Code must submit a written application to the commission. The application must contain the following:

(1) A list of the specific job classifications which are the subject of the application;

(2) A full statement of the facts giving rise to the application;

(3) A legal memorandum in support of the application containing appropriate citations; and

(4) Supporting evidence, including affidavits and other documentation, which the applicant believes justifies the approval of the application.

(B) Consideration of application. After an application has been submitted in compliance with this rule, the commission may consider the application at a regularly scheduled meeting and either:

(1) Grant or deny the application; or

(2) Refer the application to the commission staff for further investigation; or

(3) Refer the matter to an administrative law judge to conduct a public hearing on the application. Such hearing shall be conducted consistent with rule 4112-3-07 of the Administrative Code.

(C) Disposition. Any application that is referred to the commission staff for further investigation or to an administrative law judge for a public hearing shall be considered by the commission at a regularly scheduled meeting as soon as practical after receipt of an investigative report or the administrative law judge's report. The commission may grant or deny the application for a BFOQ after the hearing or further investigation.

(D) Denial of a BFOQ. In the event the commission denies the respondent's application for a BFOQ, such denial shall not preclude the respondent from asserting a BFOQ as a defense to a charge of discrimination at any subsequent public hearing concerning the issues regarding which the application for a BFOQ was sought.

(E) Denial of a BFOQ is not appealable. The commission's denial of a request for a BFOQ, pursuant to this rule, shall not be deemed to be a final appealable order of the commission.

(F) Expiration of a BFOQ. Any BFOQ granted pursuant to this rule shall expire after two years, unless the respondent has applied for and been granted an extension by the commission.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 7/12/89; 10/17/02

4112-3-16 Disposition of electronic records.

Electronic records of all hearings shall be preserved so long as the record may be the basis of a proceeding to obtain judicial review and may be reviewed by any party at the commission's central office during regular business hours.

(A) When the following facts signify that the electronic record may no longer be the basis for a proceeding to obtain judicial review, the electronic record will be erased and made available for reuse:

(1) The commission has issued a final order with respect to the particular matter, and

(2) All parties required to be advised of the order have been sent proper notices, and

(3) Any party entitled to obtain judicial review of the order has failed to timely file a petition to obtain judicial review.

(B) If a timely petition to obtain judicial review is filed, the electronic record of hearings may be erased and made available for reuse sixty days after the time when such record has been fully transcribed and the transcription received by the court wherein the petition to obtain judicial review was filed and received by all parties, provided no objection has been filed.

(C) If a timely petition to obtain judicial review is filed and an objection is made to the accuracy of the transcription, the electronic record may not be erased until two years have passed from the date of the final order of the commission or until all state appellate proceedings have been completed.

(D) The disposition of electronic records as provided in this rule is subject to the permission of the state records commission pursuant to section 149.37 of the Revised Code.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 12/23/79; 7/12/89; 10/17/02

4112-3-17 Deferral of charges to EEOC and referral of charges to HUD.

The commission may, without further action, defer any charge the subject matter of which is within their jurisdiction to the U.S. equal employment opportunity commission (EEOC) or refer any such charge to the U.S. department of housing and urban development (HUD) for investigation, findings and other proceedings. The commission may adopt, in whole or in part, modify or reject the findings of the EEOC and HUD and may take whatever further action as may be necessary to secure the rights of persons under, and achieve the purposes of, Chapter 4112. of the Revised Code. In the event that no further action is necessary, the commission shall deem its activities with respect to any charge as having terminated as of the date the charge is deferred to the EEOC or referred to HUD.

Effective: 10/21/2013
R.C. 119.032 review dates: 06/12/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 12/23/79; 7/12/89; 8/10/97; 10/17/02