(A) Discrimination prohibited. No
qualified disabled person shall, on the basis of disability, be subjected to
discrimination in employment as it relates to:
(1) Recruitment,
advertising and the processing of applications for employment;
(2) Hiring, upgrading,
promotion, award of tenure, demotion, transfer, layoff, termination, right of
return from layoff, and rehiring;
(3) Rates of pay or any
other form of compensation or any changes in compensation;
(4) Job assignment, job
classification, organizations, organizational structure, position descriptions,
lines of progression, and seniority lists;
(5) Departure and return
from leaves of absence, sick leave, or any other leave;
(6) Fringe benefits
available by virtue of employment, whether or not administered by the
respondent, except as provided in paragraph (F) of this rule;
(7) Selection and
financial support for training, including apprenticeship, professional
meetings, conferences, and other related activities and selection for leaves of
absence to pursue training;
(8) Employer-sponsored
activities, including social or recreational programs; and
(9) Any other term,
condition or privilege of employment.
(B) Pre-employment
inquiries.
(1) Pre-employment
inquiries are permissible if they are designed to:
(a) Determine whether an applicant can perform the job without
significantly increasing the occupational hazards to himself or herself, to
others, to the general public or to the work facilities;
(b) Determine whether the applicant can perform the essential
functions of the job with or without a reasonable accommodation.
(2) The pre-employment
inquiries permissible under paragraph (E) of this rule should be preceded by a
statement that discrimination on the basis of a disability, which does not
create the occupational hazards nor prevent substantial job performance, as set
out in paragraph (E) of this rule, is prohibited by state law.
(3) Information obtained
in accordance with this paragraph as to the medical condition or history of the
applicant shall be collected only through the use of separate forms which shall
be accorded confidentiality as medical records. Supervisors may, however, be
given information and instructions necessary to the person's health and
safety and may be informed of work restrictions and necessary
accommodations.
(4) If, pursuant to
federal contract requirements or a bona fide affirmative action plan, an
employer is required to maintain records of the number of persons with a
disability who apply, and/or who are employed, such records shall be gathered
and maintained in such a fashion as to preclude their inadvertent or deliberate
use for discriminatory purposes and to avoid possible misinterpretation by
applicants of the purpose for which such data will be used.
(C) Pre-employment physical
examinations.
(1) Pre-employment
physical examinations may be given after a conditional offer of employment has
been extended to the applicant if such examinations are used:
(a) To determine those matters set out in paragraph (B)(1) of
this rule;
(b) To establish a base line for health records and facilitate
preventive medicine programs; or
(c) For other reasons demonstrated by the employer to be valid.
Such examinations cannot be used to exclude an applicant, unless the disability
resulting in the exclusion creates a significant occupational hazard or
prevents substantial job performance as set out in paragraph (E) of this
rule.
(2) Information obtained
in a physical examination shall be collected and used in the same manner as set
out in paragraph (B)(3) of this rule.
(D) Burden of proof when applicant is
excluded based on disability.
(1) Burden of proof. If
an applicant is refused employment, or an employee is discriminated against in
any term, condition or privilege of employment because of a disability, the
employer shall have the burden of establishing the basis for the refusal or
discrimination, whether it is based upon a BFOQ, occupational hazard, inability
to substantially perform the job or inability of the employer to
accommodate.
(2) Bona fide
occupational qualifications.
(a) Division (E) of section 4112.02 of the Revised Code, which is
distinct from the exemption language of division (K) of section 4112.02 of the
Revised Code, permits discrimination against persons with a disability when
such discrimination is based on a BFOQ. The commission construes the BFOQ
exception very narrowly and requires an employer to prove that all or
substantially all persons with a particular disability are unable to perform
the typical duties of the job in question.
(b) The following job requirements are BFOQs:
(i) Any specific
requirement set out in a statute of the United States or an authorized
regulation of an agency of the United States government; and
(ii) Any specific
requirement set out in a statute of the state of Ohio or an authorized
regulation of an agency of the state of Ohio, or in an ordinance, authorized
rule, or other official act of a unit of local government of the state of Ohio,
unless the Ohio civil rights commission finds that the state or local
requirement is not consistent with the laws against
discrimination.
(c) The following are not BFOQs:
(i) Preferences or
objections of co-workers, the employer, clients or customers; and
(ii) Physical or
administrative obstacles or inadequacies in work facilities that reasonably can
be corrected as provided in paragraph (E) of this rule.
(3) Occupational
hazards.
(a) Division (K) of section 4112.02 of the Revised Code, provides
that a person with a disability need not be employed or trained under
circumstances that would significantly increase the occupational hazards
affecting either the person with a disability, other employees, the general
public or the facilities in which the work is to be performed. If this section
is relied upon to refuse to hire or train a person with a disability, it is the
employer's burden to establish the manner and degree to which such
occupational hazards would be increased. Objective standards must be used to
evaluate any such increased hazards. Only "significant" increases in
hazards justify refusal to hire or train. Thus, the hazard must be reasonably
foreseeable with a significant probability of happening.
(b) Occupational hazards specifically recognized by the United
States department of labor's occupational safety and health
administration, which are not correctable by reasonable accommodation, meet the
requirements of division (K) of section 4112.02 of the Revised Code and will
justify refusal to employ or train a person with a disability.
(c) Even if under existing circumstances occupational hazards
would be significantly increased, an employer may not rely on division (K) of
section 4112.02 of the Revised Code to refuse to employ or to train a person
with a disability if, through reasonable accommodation pursuant to paragraph
(E) of this rule, the significantly increased occupational hazards could be
avoided.
(4) Ability to perform
the job.
(a) Division (K) of section 4112.02 of the Revised Code further
provides that a person with a disability need not be employed or trained in a
job that requires him or her routinely to undertake any task, the performance
of which is substantially and inherently impaired by his or her disability. The
determination of whether a person with a disability is substantially unable to
perform a job must be made on an individual basis, taking into consideration
the specific job requirements and the individual person with a
disability's capabilities.
(b) An employer cannot rely on division (K) of section 4112.02 of
the Revised Code to exclude a person with a disability unless the job requires
him or her to routinely undertake a task which such person cannot substantially
perform. A task which is an infrequent, irregular or nonessential element of a
job cannot be used to exclude a person with a disability.
(c) An employer cannot rely on division (K) of section 4112.02 of
the Revised Code to exclude a person with a disability if, through reasonable
accommodation pursuant to paragraph (E) of this rule, the person with a
disability can substantially perform the essential elements of the
job.
(d) The performance of a job by a person with a disability is not
substantially and inherently impaired by his or her disability within the
meaning of division (K) of section 4112.02 of the Revised Code, if such person
is capable of performing the job, with reasonable accommodation to his or her
disability, at the minimum acceptable level of productivity applicable to a
non-disabled incumbent employee or applicant for employment.
(e) A physician's opinion on whether a person's
disability substantially and inherently impairs his or her ability to perform a
particular job will be given due weight in view of all of the circumstances
including:
(i) The physician's
knowledge of the individual capabilities of the applicant or employee, as
opposed to generalizations as to the capabilities of all persons with the same
disability, unless the disability is invariable in its disabling
effect;
(ii) The physician's
knowledge of the actual sensory, mental, and physical qualifications required
for substantial performance of the particular job; and
(iii) The
physician's relationship to the parties.
(E) Reasonable
accommodation.
(1) An employer must make
reasonable accommodation(s) to the disability of an employee or applicant,
unless the employer can demonstrate that such an accommodation(s) would impose
an undue hardship on the conduct of the employer's business.
(2) Accommodations may
take the form, for example, of providing access to the job, job restructuring,
acquisition or modification of equipment or devices or a combination of any of
these. Job restructuring may consist, among other things, of realignment of
duties, revision of job descriptions, or modified and part-time work schedules.
Specific examples include:
(a) If a job entails primarily typing duties with some irregular
messenger or delivery tasks, the messenger or delivery tasks could be assigned
to an ambulatory employee so that a nonambulatory person with a disability with
satisfactory typing skills could be employed.
(b) If an employee with a disability is required to have physical
therapy during normal working hours, his or her work schedule could be modified
to allow the employee to make up the time lost because of the
therapy.
(3) In determining
whether an accommodation would result in undue hardship to an employer, the
following factors may be considered:
(a) Business necessity;
(b) Financial cost and expense where such costs are unreasonably
high in view of the size of the employer's business, the value of the
employee with a disability's work, whether the cost can be included in
planned remodeling or maintenance, and the requirements of other laws and
contracts; and
(c) Other appropriate considerations which the employer can
support with objective evidence.
(4) The exceptions to the
prohibition against discrimination because of disability set out in division
(E) of section 4112.02 and division (K) of section 4112.02 of the Revised Code,
and paragraph (E) of this rule are not applicable where reasonable
accommodation would remove the limitation on the person with a
disability's ability to safely and substantially perform the
job.
(F) Application and testing
procedures.
(1) An employer may not
use any test or other criterion which creates barriers to employment
opportunities of persons with a disability unless:
(a) The test or criterion being used has been validated as
related to job performance for the position in question; and
(b) Alternative tests or criteria to predict the same job
performance, but which have less adverse effect, are shown to be
unavailable.
(2) Validated tests shall
be administered to persons with a disability in a manner which ensures that the
test accurately reflects the applicant's or employee's job skills,
aptitude or whatever other factor the test purports to measure, rather than
reflecting the person's disability itself, except where such disability
impairs the very factors which the test purports to measure.
(G) Fringe benefits.
(1) An employer may not
discriminate on the basis of disability in providing fringe benefits to
employees. Any fringe benefit plan must provide for equal benefits and equal
contributions to the plan by persons with a disability and non-disabled persons
unless any difference in benefits or contributions is justified by verifiable
actuarial figures and an actual substantial increase in cost to the
employer.
(2) Where, on an
actuarial basis as set forth in paragraph (G)(1) of this rule, participation by
a person with a disability in a fringe benefit is prohibitive because of a
substantial increase in cost of the benefit, the employee shall have the option
of either paying the additional cost of the benefit above the cost for
non-disabled persons or losing the benefit, but being paid by the employer a
sum equal to the contribution the employer would have made for the benefit on
behalf of the employee.
(3) In no event shall a
person with a disability be denied employment because of inability to
participate in a fringe benefit plan as described in paragraphs (G)(1) and
(G)(2) of this rule.
(H) Voluntary affirmative action
plans.
(1) In determining
whether an employer has violated the proscriptions of Chapter 4112. of the
Revised Code against discrimination based on disability, the Ohio civil rights
commission will consider evidence of an employer's efforts to establish
and implement a voluntary affirmative action plan for employment of persons
with a disability. The Ohio civil rights commission is specifically interested
in implementation of such plans which has resulted in employment of persons
with a disability and in changes in employment practices or procedures which
will facilitate access to employment by persons with a disability.
(2) Approval by an agency
of the United States government of an employer's affirmative action plan
that is required by federal law, does not relieve such employer of the
obligations imposed by Chapter 4112. of the Revised Code, as it relates to
employment of persons with a disability but such plans will be treated as
voluntary plans for the purposes of paragraph (H)(1) of this rule.
