Cuyahoga County, Ohio Employer of Four or More? Ordinance Expands LGBTQ Protections
Employees in Cuyahoga County, Ohio, now enjoy more expansive protections against discrimination than they do under Ohio and federal law. On September 25, 2018, the Cuyahoga County Council passed County Ordinance No. O2018-0009, entitled “An Ordinance enacting Chapter 206.13: Commission on Human Rights and Title 15: Anti-Discrimination to ensure equal opportunity and treatment for all citizens of Cuyahoga County.” The ordinance affords protective rights on the basis of two previously unprotected characteristics: sexual orientation and gender identity.
Under Title 15, sexual orientation specifically includes homosexuality, bisexuality, and heterosexuality. Title 15 defines “gender identity or expression” as “an individual’s actual or perceived gender-related identity, appearance, expression, mannerisms, or other gender-related characteristics, regardless of the individual’s designated sex at birth.” Like Ohio and federal laws, Title 15 also prohibits discrimination on the basis of race, color, religion, military status, national origin, disability, age, ancestry, or sex.
Title 15 protects individuals from discrimination related to (1) fair housing; (2) public accommodations, e.g., hotels, restaurants, sports venues, recreational and cultural facilities; and (3) employment. To be covered by Title 15, an employer must employ at least four individuals within Cuyahoga County. As under federal and state law, covered employers may not discharge without cause, refuse to hire, or otherwise discriminate against applicants and employees with respect to their terms and conditions of employment based on a protected characteristic.
While Title 15 prohibits an employer from inquiring about an applicant’s protected characteristics, including sexual orientation or gender identity, absent a reason related to job qualifications, it expressly permits voluntary requests for demographic information to aid in diversity and inclusion efforts. Title 15 also states that it shall not be construed to prohibit employers from carrying out diversity and inclusion efforts or affirmative action plans that are legally required or are devised to effectuate remedial or corrective action with respect to historically marginalized groups.
The ordinance calls for the establishment of a three-member Commission on Human Rights, consisting of Ohio-licensed attorneys appointed by the County Executive and confirmed by the Council. Among other responsibilities, the Commission is charged with receiving and investigating complaints of discrimination, conciliating and mediating alleged violations of Title 15, and promoting countywide diversity and inclusion efforts generally.
Procedurally, an individual alleging discrimination under Title 15 may file a complaint with the Commission. If the complaint alleges discrimination based on a category other than sexual orientation or gender identity or expression, the Commission must instruct the complainant to file a charge with the relevant state or federal agency – in employment-related cases, the Ohio Civil Rights Commission (OCRC), or the Equal Employment Opportunity Commission (EEOC). If the complaint alleges “hybrid” discrimination, such as sexual orientation or gender identity or expression in combination with another protected category, the Commission must notify the complainant of the potential for additional available rights and remedies available by filing a hybrid charge with the OCRC or EEOC, and the potential forfeiture of the complainant’s rights if he or she fails to do so. If the OCRC or EEOC dismisses a hybrid charge that is timely filed for lack of jurisdiction, the charge may then proceed under the Title 15.
Title 15 requires that complaints of discrimination based exclusively on sexual orientation and/or gender identity or expression be adjudicated by the Commission without deferral to the state or federal agency “unless and until state or federal law is revised” to grant those agencies jurisdiction to adjudicate allegations of such discrimination. The ordinance provides for a 330-day deadline from the time of the alleged discriminatory act or practice to file a charge of housing discrimination, and a 150-day deadline to file a charge of discrimination related to employment or public accommodation.
Like current procedure before the OCRC and the EEOC, Title 15 permits employers or other parties charged with discrimination to file a response to the charge. The respondent’s “Answer” or response must be filed within 30 days of service of the complaint. In all cases, the Commission will notify the complainant and the respondent of the option to voluntarily resolve the complaint through mediation. If the complaint is not resolved and the Commission investigates it, the Commission can exercise its subpoena power and, if appropriate, conduct an evidentiary hearing of the complaint. Although the complainant bears the burden of demonstrating discrimination by a “preponderance of the evidence”—the same standard applicable to most employment discrimination lawsuits—the Commission is not bound by rules of evidence in conducting its hearings. However, it may consider any information or data that it considers to be reliable, relevant, or probative.
Despite the breadth of its coverage, the remedies available under Title 15 are more limited than those under state or federal law. If the Commission finds that that the respondent engaged in the discriminatory conduct alleged, it may issue a cease and desist order, which, if the respondent fails to comply, is subject to enforcement through a lawsuit brought in the county’s name. Upon finding a violation of Title 15, the Commission may also order civil administrative penalties of (1) up to $1,000 for a first offense in the five-year period preceding the charge; (2) up to $2,500 for a second offense in the five-year period preceding the charge; and (3) up to $5,000 for a third or subsequent offense in the five-year period preceding the charge. The Commission may also award reasonable attorneys’ fees and costs to the complainant upon finding a violation. Notably, a complainant whom the Commission finds has filed a false complaint may be subject to the same civil penalties as an offending respondent. In all cases, the Commission’s findings are subject to appeal before the Cuyahoga County Court of Common Pleas.
The Cuyahoga County ordinance passed after several months of heated debate, including open hearings and public forums on the issue. As anticipated, the issue of public accommodation—including gender-neutral restrooms—generated the greatest controversy, with both proponents and opponents arguing the potential benefits and challenges that the ordinance’s requirements could pose for Cuyahoga County businesses. For employers, Title 15 presents an expanded framework to which many already adhere and endorse but which is now mandatory for employers of four or more individuals within the county. We will observe over the coming months and years the extent to which applicants and employees utilize Title 15 to enforce their newly afforded rights, the degree to which the Commission exercises its enforcement powers, and additional policy changes that the Commission may seek to promote with its authority.