Chapter 4112-5 Discrimination

4112-5-01 Purpose.

The purpose of the following rules and regulations on discrimination is to assure compliance with the provisions of Chapter 4112. of the Revised Code. These rules express the Ohio civil rights commission's interpretation of language in Chapter 4112. of the Revised Code and indicate factors which the commission will consider in determining whether or not there has been a violation of the law. Such rules apply to every action which falls within the coverage of Chapter 4112. of the Revised Code, and are not intended to either expand or contract the coverage of Chapter 4112. of the Revised Code.

Effective: 10/21/2013
R.C. 119.032 review dates: 07/22/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.02 , 4112.021 , 4112.022
Prior Effective Dates: 11/15/77

4112-5-02 Definitions.

When used in Chapter 4112. of the Revised Code and Chapters 4112-5 to 4112-7 of the Administrative Code:

(A) "Accommodation" as applied to employers means a reasonable adjustment made to a job and/or the work environment that enables a qualified disabled person to safely and substantially perform the duties of that position.

(B) "Adverse impact" means a neutral policy or practice of an employer or other entity covered by Chapter 4112. of the Revised Code which has a disproportionate impact (or can reliably be predicted to have a disproportionate impact) on a protected class. Such policy or practice constitutes an unlawful discriminatory practice, unless it can be justified by business necessity.

(C) "Animal assistant" means any animal which aids the disabled. Specific examples include:

(1) A dog which alerts a hearing impaired person to sounds;

(2) A dog which guides a visually impaired person;

(3) A monkey which collects or retrieves items for a person whose mobility is impaired.

(D) "Bona fide occupational qualification" (hereinafter denoted BFOQ) means those special job situations where an employer may hire employees or take other employment related actions on the basis of sex, age, religion, national origin, or disability justified by business necessity.

(E) "Business necessity" means a practice or policy essential to job performance such that no acceptable or alternative practice or policy with lesser discriminatory impact exists.

(F) "Employee" includes, but is not limited to, an individual compensated by an employment agency for work to be performed for an employer contracting with the employment agency. Such persons may be considered an employee of the contracting employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual is an employee of the employment agency with regard to such terms, conditions and privileges of employment under the control of the employment agency.

(G) "Fringe benefits" include medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave and other terms, conditions, and privileges of employment.

(H) "Disabled person" includes any person who presently has a disability as defined by division (A)(13) of section 4112.01 of the Revised Code or any person who has had a disability as defined by division (A)(13) of section 4112.01 of the Revised Code, who no longer has any functional limitation, but who is treated by a respondent as having such a disability, or any person who is regarded as disabled by a respondent.

(I) "Place of public accommodation" includes, but is not limited to, all places included in the meaning of such terms as inns, taverns, road houses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest; restaurants or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confectionaries, soda fountains and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises; wholesale and retail stores, and establishments dealing with goods or services of any kind, including, but not limited to, the credit facilities thereof; banks, savings and loan associations, establishments of mortgage bankers and brokers, all other financial institutions, and credit information bureaus; insurance companies and establishments of insurance policy brokers; dispensaries, clinics, hospitals, bathhouses, health spas, swimming pools, laundries and all other cleaning establishments; barber shops, beauty parlors, theaters, motion picture houses, airdomes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors, video arcades; garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls and public elevators of buildings and structures, occupied by two or more tenants, or by the owner and one or more tenants; or any place that offers accommodations, advantages, facilities or privileges to a substantial public on a nonsocial, sporadic, impersonal and nongratuitous basis.

(J) "Private housing accommodations" mean any building, structure, or portion thereof which is occupied as or designated or intended for occupancy as a home, residence, or sleeping place of one or more persons, whether or not living independently of each other. Such term also includes any real property which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

(K) "Qualified disabled person" means, with respect to employment, a disabled person who can safely and substantially perform the essential functions of the job in question, with or without reasonable accommodation, and who is not excluded from the coverage of Chapter 4112. of the Revised Code.

R.C. 119.032 review dates: 03/25/2013 and 03/25/2018
Promulgated Under: 119.03
Statutory Authority: 119.03
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/15/1977, 7/12/1989, 1/11/1998

4112-5-04 Record keeping.

The making and maintenance of records of the race, religion, sex or national origin of applicants for employment, union membership, housing or loans relating to housing shall not violate sections 4112.02(E) and 4112.02(H)(7) of the Revised Code where such records are made in conformance with instructions from, or the requirements of, an agency or court of the local, state, or federal government in connection with the administration of a program which serves to promote the elimination of discrimination. 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.

R.C. 119.032 review dates: 03/25/2013 and 03/25/2018
Promulgated Under: 119.03
Statutory Authority: 119.03
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/15/1977

4112-5-05 Sex discrimination.

(A) Sex as a bona fide occupational qualification. The BFOQ exception as to sex shall be narrowly construed so as to prohibit employment practices which tend to deny employment opportunities unnecessarily to one sex or the other. Requests for a BFOQ must be submitted pursuant to rule 4112-3-15 of the Administrative Code.

(B) Application of the BFOQ exception. The following situations do not warrant application of the BFOQ exception.

(1) Refusal to hire, promote, recall or deny an individual any term, condition or privilege of employment based upon stereotyped characterizations of the sexes. Individuals shall be considered on the basis of individual capacities rather than on the basis of characteristics generally attributed to that group.

(2) Refusal to hire, promote or recall or deny an individual any term, condition or privilege of employment when such refusal or denial is based on assumptions of the general comparative employment characteristics of that sex.

(3) Refusal to hire based upon state employment laws or administrative regulations which restrict or limit employment of one sex and do not take into account the capacities, preferences and abilities of the individual and therefore discriminate on the basis of sex. Such laws and regulations conflict with and are superseded by Chapter 4112. of the Revised Code.

(C) Job opportunities advertising. Help wanted advertising which indicates a preference, limitation or specification based on sex shall constitute unlawful sex discrimination unless sex is a BFOQ for a particular job.

(D) Pre-employment inquiries. Any pre-employment inquiries by an employer, in connection with the prospective employment of an individual that express, directly or indirectly, any limitation, specification or preference as to sex shall be unlawful unless based on a BFOQ.

(E) Fringe benefits. It shall be an unlawful employment practice for an employer to discriminate on the basis of sex with regard to fringe benefits.

(1) Benefits available to employees and their spouses and families which are conditioned on whether the employee is the head of the household or principal wage earner are a prima facie violation of the prohibitions against sex discrimination contained in Chapter 4112. of the Revised Code.

(2) An employer's declaration that the cost of a benefit program is greater with respect to one sex than the other shall not be a valid defense to a charge of unlawful sex discrimination.

(3) It shall be an unlawful employment practice for an employer to maintain a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex or which differentiates benefits available on the basis of sex.

(F) Marital status. An employment rule or regulation which restricts the employment of married members of one sex and which is not applicable to married members of the other sex shall constitute unlawful sex discrimination, unless such rule or regulation is based on a BFOQ.

(G) Pregnancy and childbirth.

(1) A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy is a prima facie violation of the prohibitions against sex discrimination contained in Chapter 4112. of the Revised Code.

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

(3) Written and unwritten employment policies involving commencement and duration of maternity leave shall be so construed as to provide for individual capacities and the medical status of the woman involved.

(4) Employment policies involving accrual of seniority and all other benefits and privileges of employment, including company-sponsored sickness and accident insurance plans, shall be applied to disability due to pregnancy and childbirth on the same terms and conditions as they are applied to other temporary leaves of absence of the same classification under such employment policies.

(5) Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer's leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing. Conditions applicable to her leave (other than its length) and to her return to employment shall be in accordance with the employer's leave policy.

(6) Notwithstanding paragraphs (G)(1) to (G)(5) of this rule, if the employer has no leave policy, childbearing must be considered by the employer to be a justification for leave of absence for a female employee for a reasonable period of time. Following childbirth, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original position or to a position of like status and pay, without loss of service credits.

(H) Separate lines of progression and seniority systems. It is an unlawful employment practice to maintain separate lines of progression or separate seniority lists based on sex where such practice would adversely affect any employee unless sex is a BFOQ for that job. Accordingly, employment practices are unlawful which arbitrarily classify jobs so that:

(1) Females are prohibited from applying for jobs labeled in a male line of progression and vice versa.

(2) A female scheduled for layoff is prohibited from displacing a less senior male and vice versa.

(3) The seniority system or line of progression classifies similar jobs as light or heavy or in some other manner and thereby operates to create unreasonable obstacles to the advancement of either sex into jobs which members of that sex would reasonably be expected to perform.

(I) Employment agencies.

(1) It shall constitute unlawful sex discrimination for an employment agency to deal exclusively with one sex, except to the extent that such agency limits its services to furnishing employees for particular jobs for which sex is a BFOQ.

(2) An employment agency that receives a job order containing an unlawful sex specification will share responsibility with the employer placing the job order if the agency fills the order knowing that the sex specification is not based on a BFOQ.

(3) An employment agency that receives a job order containing an unlawful sex specification will not share responsibility with the employer placing the order if the agency does not have reason to believe that the employer's claim of a BFOQ is without substance and the agency makes and maintains a written record available to the commission of each such job order. Such record shall include the name of the employer, the description of the job and the basis for the employer's claim that sex is a BFOQ.

(J) Sexual harassment.

(1) Harassment on the basis of sex is a violation of division (A) of section 4112.02 of the Revised Code. Unwelcome sexual advances, requests for sexual favorsand other verbal or physical conduct of a sexual nature constitute sexual harassment when:

(a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

(b) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

(c) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

(2) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts on a case-by-case basis.

(3) Applying general agency principles, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer") is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.

(4) With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the work place where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless the employer can show that it took immediate and appropriate corrective action.

(5) An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

(6) Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Chapter 4112. of the Revised Code and developing methods to sensitize all concerned.

(7) Other related practices. Where employment opportunities or benefits are granted because of an individual's submission to the employer's requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.

Effective: 10/21/2013
R.C. 119.032 review dates: 07/22/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.02
Prior Effective Dates: 7/12/89; 1/11/98

4112-5-06 Discrimination against the disabled in places of public accommodation.

(A) Discrimination prohibited. It shall constitute unlawful discrimination in violation of Chapter 4112. of the Revised Code for any facility which is a place of public accommodation to:

(1) Deny any disabled person the reasonable access to and use of the areas within such facility which are open to and used by the public in general.

(2) Deny any disabled person any term, condition, privilege, service or advantage which, upon entrance to such facility, accrues to the public in general. For example, no disabled person shall be denied, except for reasons applicable alike to all persons regardless of disability, the full use and enjoyment of:

(a) Recreational or social facilities within such place of public accommodation.

(b) Food services within such facility.

(c) Maintenance services within such facility.

(d) Any service such place of public accommodation is in the business of providing.

(3) Directly or indirectly publish, circulate, issue, display, post or mail any written, printed or broadcast communication, notice or advertisement to the effect that any of the accommodations, advantages, facilities and privileges of such place of public accommodation shall be refused, withheld or denied to any person on account of disability.

(4) Deny any disabled person in a place of public accommodation the attendance of an animal assistant or require the disabled person to pay an extra charge for the attendance of the animal assistant.

(B) Reasonable accommodation. Whether a place of public accommodation has reasonably accommodated its facility for use by the disabled shall be determined on a case-by-case basis; however, the following factors will be considered:

(1) Whether parking spaces for the disabled are provided in close proximity to the building entrance.

(2) Whether walkways from such parking spaces have been made accessible to the disabled.

(3) Whether steps at building entrances have been supplemented by a means of access to the building entrance, such as ramps or by sloped grading.

(4) Whether public entrance doorways provide the disabled with reasonable access to such building.

(5) Whether public telephones, lavatory facilities, water fountains, elevators, corridors, vending machines, stairways, food service lanes and aisles, utility outlets of frequent or essential use, and other similar facilities within such place of public accommodation are accessible to the disabled.

(C) Burden of proof when a disabled person is denied access to place of public accommodation. The owner, proprietor, keeper, or manager of a place of public accommodation shall have the burden of proving that the denial of any accommodation, advantage, facility or privilege to a disabled person is based on a restriction applicable to all persons regardless of disability or an inability to reasonably accommodate due to undue hardship.

(D) Undue hardship. Upon an owner's, proprietor's, keeper's or manager's claim of inability to accommodate the disabled due to undue hardship, the following factors will be considered:

(1) Business necessity.

(2) Whether the cost of accommodating the disabled would be substantially disproportionate to the total cost, use or size of such place of accommodation.

(3) Whether or not it is architecturally feasible to make reasonable accommodation.

(4) The requirements of other laws and contracts.

(5) Other appropriate considerations the proprietor, keeper or manager of the place of public accommodation can support with objective evidence.

(E) New construction of places of public accommodation. Each place of public accommodation which is to be designed or constructed, after the effective date of rule 4112-5-06 of the Administrative Code, shall be deemed to have met the requirements of rule 4112-5-06 of the Administrative Code if they are so designed and constructed as to be readily accessible to and usable by disabled persons.

(F) Alterations and renovation of places of public accommodation. Each place of public accommodation which is altered or renovated in whole or in part, after the effective date of rule 4112-5-06 of the Administrative Code, shall be deemed to have met the requirements of rule 4112-5-06 of the Administrative Code if they are so altered or renovated as to be reasonably accessible to and usable by the disabled. However this paragraph shall not apply to repairs and minor alterations of such buildings.

(G) "American National Standards Institute" accessibility standards. In order to meet the accessibility requirements of paragraphs (E) and (F) of this rule, all places of public accommodation designed, constructed, renovated or altered after the effective date of rule 4112-5-06 of the Administrative Code shall at a minimum conform such design, construction, renovation or alteration of its facilities to the "American National Standard Specification for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped," published by the "American National Standards Institute," as such standards are periodically and officially revised.

(H) Variances. Variations with the requirements set forth in the "American National Standards Institute" specifications may be permissible when full compliance with such standards would result in undue hardship. The factors set forth in paragraph (D) of this rule shall be considered when a claim of undue hardship is raised.

(I) Seating accommodations in places of public accommodations. As regulated by the number of persons to be accommodated by fixed seating, the following number of spaces for wheel chairs shall be provided:

(1)

Number of persons to be accommodated

Minimum of spaces

   

0 to 150 Inclusive

1

151 to 450 Inclusive

3

451 to 750 Inclusive

5

751 to 1000 Inclusive

6

Over 1000 - one additional seat for each 600 persons or fraction thereof.

(2) In lieu of the requirements set forth in paragraph (I)(1) of this rule, there may be provided sections of fixed seating that can be readily removed when the occasion warrants.

(J) Parking spaces for the disabled in places of public accommodation. If parking spaces are provided for self-parking by employees or visitors, or both, then accessible spaces shall be provided for the disabled in each such parking area in conformance with the table below:

(1)

Total parking provided

Minimum spaces

1 to 25

1

26 to 50

2

51 to 75

3

76 to 100

4

101 to 150

5

151 to 200

6

201 to 300

7

301 to 400

8

401 to 500

9

501 to 1000

2 percent of total

1001 and over

20 plus 1 for each 100 over 1000

Spaces required by the table in paragraph (J)(1) of this rule need not be provided in the particular lot. They may be provided in a different location if equivalent or greater accessibility, in terms of distance from an accessible entrance, cost and convenience is ensured.

(2) One in every eight accessible spaces must be designed with adequate adjacent space to deploy a lift used with a van. The access aisle for van accessible spaces must be a minimum of 96 inches wide. These spaces must have a sign indicating they are van accessible, as required under "Accessibility Guideline 4.6.4" of the Americans with Disabilities Act, but they are not reserved exclusively to van users. The minimum vertical clearance at van accessible spaces is 98 inches at the parking space, and along at least one vehicle access route from the site entrance and exit to the parking space, as required under "Accessibility Guideline 4.6.5" of the Americans with Disabilities Act of 1990, 42 U.S.C. 12181 - 12189, as amended as of the effective date of January 1, 2009. All van accessible spaces may be grouped on one level of a parking structure.

(K) Building codes. Nothing in this chapter on the disabled shall be construed to minimize or circumvent in any way more stringent accessibility standards required of a place of public accommodation by local, state or federal building codes.

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: 11/15/1977, 7/12/1989, 1/11/1998

4112-5-07 Discrimination against the disabled in private housing accommodations.

(A) Discrimination prohibited. No person shall, on the basis of a disability, be subjected to discrimination in private housing accommodations as it relates to:

(1) The sale, transfer, assignment, renting, subleasing or financing of such accommodations. In particular, it shall constitute unlawful discrimination in violation of Chapter 4112. of the Revised Code for any person to:

(a) Refuse to sell, rent, transfer, or sublease after making a bona fide offer to a person, because of such person's disability.

(b) Refuse to negotiate for the sale, renting, transfer, subleasing or financing of private housing accommodations because of a person's disability.

(c) Refuse to consider sources of a disabled applicant's income or to subject the applicant's source of income or ability to generate income to automatic discounting in whole or in part because of such applicant's disability.

(d) Segregate the placement of a disabled person in a unit, floor, building or complex within such private housing accommodations, unless such placement is at the request or with the consent of the disabled person.

(2) Advertising or listing for the sale, transfer, assignment, renting, subleasing or financing of private housing accommodations.

(3) Membership or participation in any organization, service or facility relating to the selling, transfer, assignment, renting, subleasing or financing of private housing accommodations.

(4) Representations as to the availability of such housing or its availability for inspection.

(5) Representations of the composition of the block, neighborhood or area, in which such housing is located, because of the presence or anticipated presence of disabled persons.

(6) Any housing accommodations sponsored activities, including social or recreational activities.

(7) Any housing accommodation services, including maintenance and utility services.

(8) Any other term, condition or privilege in the sale, transfer, assignment, renting, subleasing or financing of such housing accommodations.

(B) Application inquiries. It shall constitute unlawful housing discrimination for any person to make any written or oral inquiries or record concerning the disability of any applicant or intended occupant involved in the sale, renting, assignment or subleasing of private housing accommodations, unless such inquiries or records are made pursuant to federal contract requirements of a bona fide affirmative action plan. If such records or inquiries are so required, they shall be 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) Animal assistants. Every disabled person who has an animal assistant or who obtains an animal assistant shall be entitled to keep the animal assistant on the premises purchased, leased, rented, assigned or subleased by such disabled person. He or she shall not be required to pay any extra charge for such animal assistant but shall be liable for damage done by the animal assistant to the premises.

(D) Duty to accommodate. Nothing in rule 4112-5-07shallrequireanyperson selling, transferring, assigning, leasing or subleasing private housing accommodations to modify such property in any way or provide a higher degree of care for a DISABLED person. Nor shall anything in rule 4112-5-07relieveanydisabledperson of any obligation generally imposed on all persons regardless of disability in any lease, agreement or contract of purchase concerning such housing accommodations, except that a disabled person shall be permitted, at his or her own expense, to make reasonable modifications of existing premises occupied or to be occupied by such person if modifications are necessary to afford such person full enjoyment of the premises. When the disabled person vacates the premises, the modifications shall be removed, when requested by the landlord, at the disabled person's expense and the premises restored to ITS original condition. Reasonable accommodations in rules, policies, practices, or services shall also be made when such accommodations are necessary to afford a disabled person equal opportunity to use and enjoy a premises.

(E) Burden of proof. If an applicant, because of disability, is refused housing accommodations or discriminated against in any term, condition or privilege in the sale, assignment, transfer, renting, subleasing, or financing of housing accommodations, the owner, landlord, proprietor, or agent shall have the burden of establishing the basis for such refusal or discrimination.

(F) Health and safety. It shall constitute a defense to a claim of unlawful housing discrimination that the sale, transfer, assignment, renting, or subleasing of such housing accommodations would, under the circumstances, pose a direct threat to the health or safety of other individuals or would result in substantial physical damage to the property of others. However, defenses raised pursuant to this paragraph will be closely scrutinized. Speculative evidence of hazards to health and safety will not suffice.

R.C. 119.032 review dates: 03/25/2013 and 03/25/2018
Promulgated Under: 119.03
Statutory Authority: 119.03
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 11/4/1971, 11/15/1977, 12/23/1979, 7/12/1989, 9/2/1992, 10/2/1992, 1/11/1998

4112-5-08 Discrimination in the employment of the disabled.

(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 disabled persons 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 (L) of section 4112.02 of the Revised Code, permits discrimination against the disabled 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 (L) of section 4112.02 of the Revised Code, provides that a disabled person need not be employed or trained under circumstances that would significantly increase the occupational hazards affecting either the disabled person, 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 disabled person, 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 (L) of section 4112.02 of the Revised Code and will justify refusal to employ or train a disabled person.

(c) Even if under existing circumstances occupational hazards would be significantly increased, an employer may not rely on division (L) of section 4112.02 of the Revised Code to refuse to employ or to train a disabled person 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 (L) of section 4112.02 of the Revised Code further provides that a disabled person 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 disabled person is substantially unable to perform a job must be made on an individual basis, taking into consideration the specific job requirements and the individual disabled person's capabilities.

(b) An employer cannot rely on division (L) of section 4112.02 of the Revised Code to exclude a disabled person 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 disabled person.

(c) An employer cannot rely on division (L) of section 4112.02 of the Revised Code to exclude a disabled person if, through reasonable accommodation pursuant to paragraph (E) of this rule, the disabled person can substantially perform the essential elements of the job.

(d) The performance of a job by a disabled person is not substantially and inherently impaired by his or her disability within the meaning of division (L) 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 to the disability of an employee or applicant, unless the employer can demonstrate that such an accommodation 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 disabled person with satisfactory typing skills could be employed.

(b) If a disabled employee 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 disabled employee'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 (L) 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 disabled person'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 disabled persons 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 disabled persons 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 disabled 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 disabled person 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 disabled person 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 disabled persons. The Ohio civil rights commission is specifically interested in implementation of such plans which has resulted in employment of disabled persons and in changes in employment practices or procedures which will facilitate access to employment by disabled persons.

(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 disabled persons, but such plans will be treated as voluntary plans for the purposes of paragraph (H)(1) of this rule.

Effective: 10/21/2013
R.C. 119.032 review dates: 07/22/2013 and 10/21/2018
Promulgated Under: 119.03
Statutory Authority: 4112.04
Rule Amplifies: 4112.02
Prior Effective Dates: 11/15/77; 7/12/89; 1/11/98

4112-5-09 Discrimination against the disabled in institutions of higher education.

(A) Applicability. This rule applies to post-secondary education programs and activities, including post-secondary vocational educational programs and activities as defined in section 4112.022 of the Revised Code.

(B) Admissions and recruitment.

(1) Generally. Qualified disabled persons shall not be denied admission or be subjected to discrimination in admission or recruitment on the basis of disability at an educational institution covered by Chapter 4112. of the Revised Code.

(2) Admissions. In administering its admission policies, an educational institution:

(a) May not apply limitations upon the number or proportion of disabled persons who may be admitted;

(b) May not make use of any test or criterion for admission that has a disproportionate adverse effect on disabled persons or any class of disabled persons unless:

(i) The test or criterion, as used by the educational institution, has been validated as a predictor of success in the education program or activity in question; and

(ii) Alternate tests or criteria that have a less disproportionate adverse effect are shown not to be available.

(c) Shall assure itself that:

(i) Admissions tests are selected and administered so as best to ensure that, when a test is administered to an applicant who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the applicant's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure);

(ii) Admissions tests that are designed for persons with impaired sensory, manual or speaking skills are offered as often and in as timely a manner as are other admissions tests; and

(iii) Admissions tests are administered in facilities that, on the whole, are accessible to disabled persons; and

(d) Except as provided in paragraph (C) of this rule, may not make preadmission inquiry as to whether an applicant for admission is a disabled person but, after admission, may make inquiries on a confidential basis as to disabilities that may require accommodation.

(3) Preadmission inquiry exception. When an educational institution is taking remedial action to correct the effects of past discrimination or when an educational institution is taking voluntary affirmative action to remedy conditions that have resulted in limited participation by qualified disabled persons, the educational institution may invite applicants for admission to indicate whether and to what extent they are disabled, provided that:

(a) The educational institution states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary affirmative action efforts; and

(b) The educational institution states clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this rule.

(4) Validity studies. For the purpose of paragraph (B)(2)(b) of this rule, an educational institution may base prediction equations on first-year grades, but shall conduct periodic validity studies against the criterion of overall success in the education program or activity in question in order to monitor the general validity of the test scores.

(C) Treatment of students.

(1) No qualified disabled student shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other post-secondary education program or activity to which this rule applies.

(2) Any educational institution to which this rule applies that considers participation by students in education programs or activities not operated wholly by the educational institution as part of, or equivalent to, an education program or activity operated by the educational institution shall assure itself that the other education program or activity, as a whole, provides an equal opportunity for the participation of qualified disabled persons.

(3) An educational institution may not, on the basis of disability, exclude any qualified disabled student from any course, course of study, or other part of its education program or activity.

(4) Educational institutions shall operate their programs and activities in the most integrated setting appropriate.

(D) Academic adjustments.

(1) Academic requirements. Educational institutions shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of disability, against a qualified disabled applicant or student. Academic requirements that the educational institution can demonstrate are essential to the program of instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this rule. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.

(2) Other rules. Educational institutions may not impose upon disabled students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of disabled students in the educational institution's education program or activity.

(3) Course examinations. In its course examinations or other procedures for evaluating students' academic achievement in its program, educational institutions shall provide such methods for evaluating the achievement of students who have a disability that impairs sensory, manual, or speaking skills as will best ensure that the results of the evaluation represents the student's achievement in the course, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where such skills are the factors that the test purports to measure).

(4) Auxiliary aids.

(a) Educational institutions shall take such steps as are necessary to ensure that no disabled student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the educational institution because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.

(b) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Educational institutions need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.

(E) Housing.

(1) Housing provided by the educational institution. Any educational institution that provides housing to its non-disabled students shall provide comparable, convenient, and accessible housing to disabled students at the same cost as to others. Such housing shall be available in sufficient quantity and variety so that the scope of disabled students' choice of living accommodations is, as a whole, comparable to that of non-disabled students.

(2) Other housing. An educational institution that assists any agency, organization, or person in making housing available to any of its students shall take such action as may be necessary to assure itself that such housing is, as a whole, made available in a manner that does not result in discrimination on the basis of disability.

(F) Financial and employment assistance to students.

(1) Provision of financial assistance.

(a) In providing financial assistance to qualified disabled persons, an educational institution may not:

(i) On the basis of disability, provide less assistance than is provided to non-disabled persons, limit eligibility for assistance, or otherwise discriminate; or

(ii) Assist any entity or person that provides assistance to any of the educational institution's students in a manner that discriminates against qualified disabled persons on the basis of disability.

(b) An educational institution may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established under wills, trusts, bequests, or similar legal instruments that require awards to be made on the basis of factors that discriminate or have the effect of discriminating on the basis of disability only if the overall effect of the award of scholarships, fellowships, and other forms of financial assistance is not discriminatory on the basis of disability.

(2) Assistance in making available outside employment. An educational institution that assists any agency, organization, or person in providing employment opportunities to any of its students shall assure itself that such employment opportunities, as a whole, are made available in a manner that would not violate paragraph (F)(1)(a) of this rule if they were provided by the educational institution.

(3) Employment of students. An educational institution that employs any of its students may not do so in a manner that violates paragraph (F)(1)(a) of this rule.

(G) Nonacademic services.

(1) Physical education and athletics.

(a) In providing physical education courses and athletics and similar programs and activities to any of its students, educational institutions may not discriminate on the basis of disability. An educational institution that offers physical education courses or that operates or sponsors intercollegiate, club or intramural athletics shall provide to qualified disabled students an equal opportunity for participation in these activities.

(b) An educational institution may offer to disabled students physical education and athletic activities that are separate or different only if separation or differentiation is consistent with the requirements of section 4112.022 of the Revised Code, and only if no qualified disabled student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.

(2) Counseling and placement services. An educational institution that provides personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services without discrimination on the basis of disability. The educational institution shall ensure that qualified disabled students are not counseled toward more restrictive career objectives than are non-disabled students with similar interests and abilities. This requirement does not preclude an educational institution from providing factual information about licensing and certification requirements that may present obstacles to disabled persons in their pursuit of particular careers.

(3) Social organizations. An educational institution that provides significant assistance to fraternities, sororities, or similar organizations, including the use of services and facilities for social functions, shall assure itself that the membership practices of such organizations do not permit discrimination otherwise prohibited by this rule.

R.C. 119.032 review dates: 03/25/2013 and 03/25/2018
Promulgated Under: 119.03
Statutory Authority: 119.03
Rule Amplifies: 4112.04 , 4112.05
Prior Effective Dates: 9/1/1992 (Emer.), 7/12/1989, 1/11/1998