Ohio Administrative Code
Title 4112 - Ohio Civil Rights Commission
Chapter 4112-5 - Discrimination
Section 4112-5-08 - Discrimination in the employment of persons with a disability
Universal Citation: OH Admin Code 4112-5-08
Current through all regulations passed and filed through December 16, 2024
(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 anaccommodation(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.
Disclaimer: These regulations may not be the most recent version. Ohio may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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