OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 369 Bill Analysis
133rd General Assembly
Click here for H.B. 369’s Fiscal Note
Version: As Introduced
Primary Sponsors: Reps. Hillyer and Skindell
Effective Date:
Nick Thomas, Research Associate
SUMMARY
 Creates the Ohio Fairness Act to prohibit discrimination on the basis of sexual
orientation or gender identity or expression.
 With respect to the Ohio Civil Rights Commission (OCRC) Law, expands many of the
existing prohibitions against various unlawful discriminatory practices to apply to
discriminatory practices on the basis of “sexual orientation,” or “gender identity or
expression,” both of which are defined by the bill.
 Modifies the current list of characteristics excluded from the definition of “physical or
mental impairment,” for purposes of the OCRC Law.
 Requires the OCRC to exercise certain of its existing powers and duties also with respect
to discrimination on the basis of sexual orientation and gender identity or expression.
 Modifies the scope and content of the comprehensive educational program regarding
prejudice that the OCRC must prepare.
 Includes sexual orientation and gender identity or expression in a provision stating that
nothing in the OCRC Law that governs OCRC hearings on alleged unlawful discriminatory
practices may be construed to authorize any person to observe the proportion that
persons of a covered characteristic bear to the total population or in accordance with
any criterion other than the individual qualifications of an applicant for employment or
membership.
 Provides that nothing in the OCRC Law: (1) may be considered as repealing any Ohio law
relating to discrimination because of sexual orientation or gender identity or expression,
or (2) limits actions, procedures, or remedies afforded under federal law.
 Adds mediation as an informal method by which compliance with the OCRC Law can be
induced.
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 Adds sexual orientation and gender identity or expression to the list of covered
characteristics specified in various provisions outside the OCRC Law that generally
prohibit persons or entities from discriminating on the basis of some or all of the
covered characteristics.
 Adds sexual orientation and gender identity or expression to the list of covered
characteristics specified in various provisions outside the OCRC Law that require certain
functions or duties to be performed without discrimination, require certain documents
to include statements pertaining to nondiscrimination, or generally pertain to
discrimination on the basis of some or all of the covered characteristics.
TABLE OF CONTENTS
Ohio Fairness Act – overview.......................................................................................................... 2
Ohio Civil Rights Commission Law .................................................................................................. 3
Existing law .................................................................................................................................. 3
Operation of the bill .................................................................................................................... 3
Exclusion from the definition of “physical or mental impairment” ....................................... 4
Statistics, surveys, and progress reports ................................................................................ 4
OCRC duty – comprehensive educational program ............................................................... 4
OCRC authority – study discrimination problems and issue publications ............................. 5
Enforcement provisions.......................................................................................................... 5
Discrimination prohibitions outside the OCRC Law ........................................................................ 6
Other discrimination-related provisions......................................................................................... 9
DETAILED ANALYSIS
Ohio Fairness Act – overview
The bill creates the Ohio Fairness Act, which generally expands the list of protected
classes throughout the Revised Code to include sexual orientation and gender identity or
expression.
The bill specifies in its statement of intent that (1) lesbian, gay, bisexual, and
transgender individuals are too often the victims of discrimination, and may be fired from jobs,
denied access to housing and educational institutions, refused credit, and excluded from public
accommodations because of their sexual orientation or gender identity or expression, (2) it is
essential that Ohio protect the civil rights of all its residents, and (3) the Ohio Fairness Act is
intended to protect civil rights by prohibiting discrimination against lesbian, gay, bisexual, and
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transgender individuals. In addition, the Ohio Fairness Act upholds existing religious exemptions
currently provided under Ohio law.1
Ohio Civil Rights Commission Law
Existing law
The Ohio Civil Rights Commission (OCRC) Law currently prohibits various unlawful
discriminatory practices by the following: (1) employers, employment agencies, personnel
placement services, labor organizations (unions), joint labor-management committees, and
persons seeking employment, in specified employment situations or employment-related
membership situations, (2) proprietors, employees, keepers, and managers of places of public
accommodation in making the full enjoyment of these places available to the public, (3) any
person in specified transactions involving housing accommodations, such as the sale, rental, or
financing of housing accommodations or the extension of financial assistance for the purchase,
construction, repair, etc., of those accommodations, (4) any creditor in the extension of credit,
or other specified credit-related matters, for other types of purchases or transactions, (5) credit
reporting agencies in maintaining information, and (6) educational institutions in connection
with admission, assignment to programs or housing, awarding of grades, services, or financial
aid, or permitting participation in activities with respect to their treatment of individuals with a
disability.2
These unlawful discriminatory practices include discrimination regarding the specified
matter on the basis of the race, color, religion, age, sex, familial status, marital status, military
status, national origin, ancestry, or disability (“covered characteristics”) of an employee; of an
applicant for employment, for membership, for the purchase, lease, or financing of housing
accommodations, or for credit; of a person seeking access to a place of public accommodation;
or of a person as specified in the laws generally described in (1) to (6), above.3
Not every covered characteristic listed in the preceding sentence is included in each
prohibition against unlawful discriminatory practices. For example, “familial status” is listed
consistently in the law governing unlawful discriminatory practices generally, but not in the law
governing unlawful discriminatory practices by creditors and credit reporting agencies, where
“marital status” is included in the list.
Operation of the bill
The bill adds “sexual orientation” and “gender identity or expression” to the list of
covered characteristics that can be the basis for unlawful discriminatory practices under the
prohibitions of the existing OCRC Law.4 The bill defines “sexual orientation” as actual or
1 Section 4.
2 R.C. 4112.02 and 4112.021; R.C. 4112.022, not in the bill.
3 R.C. 4112.02(A) to (H) and 4112.021.
4 R.C. 4112.02(A) to (H) and 4112.021.
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perceived heterosexuality, homosexuality, or bisexuality. “Gender identity or expression”
means the gender-related identity, appearance, or mannerisms or other gender-related
characteristics of an individual, without regard to the individual’s designated sex at birth.5 Also,
in the definitions that apply to the OCRC Law, the bill includes “sexual orientation” and “gender
identity or expression.” The bill also reorganizes the covered characteristic to list them in a
consistent order.6
Exclusion from the definition of “physical or mental impairment”
Current law excludes various characteristics and disorders from the definition of
“physical or mental impairment” under the OCRC Law. (Physical or mental impairment is part of
the definition of “disability” under the OCRC Law.) The bill removes homosexuality, bisexuality,
transvestism, transexualism, and gender identity disorders not resulting from physical
impairments from the current law list of excluded characteristics and disorders, and qualifies
the current law exclusion for “other sexual behavior disorders” to only exclude those sexual
behavior disorders that have corresponding criminal behavior.7
Statistics, surveys, and progress reports
The bill adds sexual orientation and gender identity or expression to the covered
characteristics in the provisions of existing law (and reorganizes the list of covered
characteristics) that require the OCRC to do both of the following:
1. Make periodic surveys of the existence and effect of discrimination on the basis of any
of the covered characteristics on the enjoyment of civil rights by persons within Ohio;
2. Receive progress reports from state agencies and entities, etc., and from political
subdivisions and their agencies and entities, etc., regarding: (a) affirmative action
programs for the employment of persons against whom discrimination is prohibited by
the OCRC Law, or (b) affirmative housing accommodations programs developed to
eliminate or reduce an imbalance in relation to a covered characteristic.8
OCRC duty – comprehensive educational program
Continuing law requires the OCRC, in cooperation with the state Department of
Education, to develop a comprehensive education program for Ohio public school students and
all other Ohio residents. The program must be designed to do both of the following:
(1) eliminate prejudice on the basis of each covered characteristic, (2) to further good will
among those groups, and (3) emphasize the origin of prejudice and, as added by the bill,
discrimination, their harmful effects, and their incompatibility with American principles of
equality and fair play.
5 R.C. 4112.01(A)(24) and (25).
6 R.C. 4112.01(A)(11), 4112.02(A) to (H), and 4112.021.
7 R.C. 4112.01(A)(13) and (A)(16).
8 R.C. 4112.04(A)(7) and (10).
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The bill adds “sexual orientation” and “gender identity or expression” to the list of
covered characteristics and specifies the program is for primary and secondary students.9
OCRC authority – study discrimination problems and issue
publications
The bill adds sexual orientation and gender identity or expression to the covered
characteristics in the current provisions (and reorganizes the list of covered characteristics)
that: (1) authorize the OCRC itself, or authorize the OCRC to empower local and statewide
advisory agencies and conciliation councils it creates, to study the problems of discrimination
on the basis of any of the covered characteristics in all or specific fields of human relationships,
and (2) authorize the OCRC to issue any publications and the results of investigations and
research that in its judgment will tend to promote good will and minimize or eliminate
discrimination on the basis of any of the covered characteristics.10
Enforcement provisions
The bill provides that nothing in the OCRC Law that governs OCRC hearings on alleged
unlawful discriminatory practices may be construed to authorize or require any person to
observe the proportion that persons of any sexual orientation or gender identity or expression
bear to the total population or in accordance with any criterion other than the individual
qualifications of an applicant for employment or membership. Current law contains a similar
statement regarding persons in any of the currently covered characteristics. (The bill also
reorganizes the list of covered characteristics.)
In addition, under the bill, nothing in the OCRC Law may be considered as repealing any
provision of Ohio law relating to discrimination because of sexual orientation or gender identity
or expression. But a person filing a charge with the OCRC alleging an unlawful discriminatory
practice concerning age is barred from instituting a civil action under the OCRC Law with
respect to the practice alleged. A similar provision exists in current law relative to
discrimination on the basis of any of the currently covered characteristics. (The bill also
reorganizes the list of covered characteristics.)
The bill states that the OCRC Law does not limit actions, procedures, and remedies
afforded under federal law.
Under continuing law, the OCRC Law is to be construed liberally for the accomplishment
of its purposes, and that any law inconsistent with any provision of the OCRC Law does not
apply.11
Also under continuing law, before instituting formal hearing enforcement proceedings
under the OCRC Law, the OCRC is required to attempt to induce compliance by informal
9 R.C. 4112.04(A)(9).
10 R.C. 4112.04(B)(4)(a) and (5).
11 R.C. 4112.05(E) and 4112.08.
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methods of conference, conciliation, and persuasion. The bill adds mediation as an informal
method by which compliance with the OCRC Law can be induced.12
Discrimination prohibitions outside the OCRC Law
Various provisions of current law located outside the OCRC Law prohibit persons or
entities from discriminating on the basis of most or all of the covered characteristics described
above under “Operation of the bill.” Some of those existing provisions also include
another characteristic (such as inability to pay, political affiliation, or health status) in addition
to the covered characteristics, that applies to the particular situation covered by the provision.
The bill adds sexual orientation and gender identity or expression to the list of covered
characteristics specified in many of those provisions, but it does not add those characteristics to
all of the provisions. In the provisions of current law to which the bill adds sexual orientation
and gender identity or expression to the list of covered characteristics, the bill’s definitions of
those terms apply. Additionally, the bill reorganizes the listed covered characteristics to list
them in a consistent order.
The provisions of current law to which the bill adds sexual orientation and gender
identity or expression to the list of covered characteristics specified in the provisions, and the
persons or entities that are prohibited from doing the described acts, are as follows:
1. A governing body of a political subdivision – generally prohibited from using public
funds to publish, distribute, or otherwise communicate information that promotes
illegal discrimination on the basis of race, color, religion, age, ancestry, national origin,
or handicap.13
2. A health insuring corporation that contracts with the Department of Administrative
Services under the law governing group health insurance for state employees –
prohibited from refusing to contract with a physician for the provision of health care
services because of the physician’s race, color, religion, sex, age, ancestry, national
origin, disability, or military status.14
3. A board of alcohol, drug addiction, and mental health services or any community
addiction or mental health services provider under contract with such a board –
prohibited from discriminating in the provision of services under its authority, in
employment, or under a contract on the basis of race, color, religion,