Interviewing and Selecting Job Candidates:
Ohio
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Stanley Weiner, E. Michael Rossman, Elizabeth Dicus and Theresa Dean, Jones Day
Summary
· Ohio's laws against discrimination in employment are generally consistent with federal laws and regulations, but Ohio's provisions are somewhat more broad. See Ohio Fair Employment Practices Act.
· Various municipal laws provide protection from employment discrimination to gay, lesbian, bisexual and transgender individuals. See City Laws.
· Ohio law provides a mechanism for establishing the bona fide occupational qualifications of a position. See BFOQ Exception.
· Employers should avoid preemployment inquiries concerning protected status and criminal offenses that have been expunged or sealed. See Preemployment Inquiries; Arrest and Conviction Inquiries.
· Ohio has removed criminal history questions from state civil service job applications. Several cities have taken similar steps. See Ban the Box.
· If requesting a job applicant's medical records, employers should use a separate form from other employment application materials. See Medical Inquiries.
Ohio Fair Employment Practices Act
Ohio's antidiscrimination statute largely mirrors federal antidiscrimination laws such as Title VII of the federal Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) with a few differences. Specifically, Ohio's antidiscrimination law is applicable to any private employer with four or more employees. It also covers all state and local government employers, as well as all employment agencies and labor organizations. +ORC Ann. 4112.01. Covered employers must post an Ohio fair employment practices notice in a conspicuous place accessible to employees.
Further, Ohio's definition of employer is broad. +ORC Ann. 4112.01(A)(2) (defining the term employer to include "any person acting directly or indirectly in the interest of an employer").
The Ohio Fair Employment Practices Act also prohibits employers from discriminating with respect to employment on the basis of ancestry (as well as on the basis of race, color, religion, sex, pregnancy, military status, national origin, disability and age). +ORC Ann. 4112.02. Federal laws generally do not expressly bar discrimination based on ancestry, but a number of courts have held that the federal prohibition on national origin discrimination encompasses ancestry discrimination. See Dawavendewa v. Salt River Project Agric. Improvement and Power Dist., +154 F.3d 1117 (9th Cir. 1998).
Ohio's antidiscrimination laws do not identify sexual orientation and gender identity as protected classes. +ORC Ann. 4112.02. However, a number of municipal laws restrict employers from making employment decisions based on sexual orientation, gender identity, or both.
City Laws
The municipalities of Athens, Columbus, Cleveland, Cincinnati, Toledo, Dayton, Akron, Yellow Springs, Bowling Green and Oxford have laws prohibiting employers from discriminating on the basis of sexual orientation or gender identity. Laws in Cleveland Heights and Canton protect applicants and employees from discrimination on the basis of sexual orientation. Additionally, various public employers are subject to local laws or regulations prohibiting such discrimination.
Preemployment Inquiries
Membership in a Protected Class
Ohio's discrimination laws protect job applicants as well as current employees. As a result, interviewers in Ohio should take care to avoid questioning applicants regarding membership in any protected classes. Similarly, employers should not use application materials that directly or indirectly seek information regarding an applicant's membership in a protected class.
Guidance
The Ohio Civil Rights Commission provides several publications that employers may find useful in connection with preemployment interviews. For example, the Commission's "Questioning Applicants for Employment and Membership in Labor Organizations: A Guide for Application Forms and Interviews" is available on its website.
The Guide also includes a useful list of lawful vs. unlawful inquiries. Among the prohibited inquiries are questions that would reveal a job applicant's high school graduation date, birthplace or any other inquiry into a protected characteristic that is not a bona fide occupational qualification (BFOQ).
Additionally, the Commission publishes a brochure entitled "Employment Guide - Questioning Applicants." This brochure is available on the Commission's website, and employers may also obtain it by contacting the Commission at the following address:
Ohio Civil Rights Commission
Rhodes State Office Tower
30 East Broad St., 5th Floor
Columbus, OH 43215
(614)-466-2785
Arrest and Conviction Inquiries
Ohio law generally does not prohibit an employer from running a criminal background check and, in some cases, employers are required to perform such checks. See Recruiting and Hiring > Preemployment Screening and Testing: Ohio > Background Checks.
However, an employer generally may not question an applicant regarding sealed or expunged arrests or convictions. +ORC Ann. 2953.33(B)(1); +ORC Ann. 2151.357(G); +ORC Ann. 3319.292. If an inquiry is made in violation of this prohibition, the applicant may respond as if the sealed arrest or being taking into custody did not occur, and the person shall not be subject to any adverse action, such as denial of employment, because of the response.
Further, employers should use caution in this area in light of the Equal Employment Opportunity Commission's April 2012 Enforcement Guidance and other recent statements that the use of an applicant's criminal history may, in some instances, violate Title VII and its employment discrimination prohibition.
Ban the Box
Effective June 1, 2015, Ohio removed the box on state civil service job applications that prospective employees previously could be asked to check off if they had ever been convicted of a crime. As a result, criminal history questions no longer appear on paper and online applications for state employment. Some of the covered positions include:
· State lawyers;
· Highway workers;
· Prison guards; and
· Social workers.
State employers may still question applicants about their criminal records during job interviews or later in the hiring process.
Ban the Box Ordinances
A growing number of cities have adopted "ban the box" laws or policies that prohibit employers from asking individuals on an initial job application to check off a box if they they have ever been convicted of a crime. The following Ohio cities have removed criminal history questions from city job applications with very limited exceptions for safety-sensitive positions:
· Akron;
· Canton;
· Cincinnati;
· Cleveland;
· Massillon; and
· Youngstown.
These measures do not apply to private employers and do not prevent these cities from conducting background checks later in the hiring process. In Cleveland, those background checks may only be conducted on finalists for a city position. The Cincinnati policy goes a step further and limits the city to conducting background checks only after a contingent job offer has been made.
Medical Inquiries
Ohio does permit health-related inquiries, but this is subject to a number of restrictions. An employer may ask preemployment health questions if they are for the purpose of:
· Finding out if an applicant can perform the job without significantly increasing the occupational hazards to the worker, to others, to the general public or to the work facilities; or
· Determining if the applicant can perform the essential job functions with or without reasonable accommodation.
+ORC Ann. 4112.05.
Disability Discrimination
If an employer seeks health-related information for the above purposes, it must be aware that disability discrimination is prohibited. Also, no qualified individual with a disability shall be subject to discrimination as it relates to the processing of employment applications. +ORC Ann. 4112.05.
If an applicant is denied employment because of a disability, the employer has the burden of proof of establishing the basis for the refusal, whether it is based upon a BFOQ, occupational hazard or inability to substantially perform the job.
Medical Records
In requesting medical records, employers should use a form that is separate from other employment application materials. The form should be marked confidential, and it and any medical information should be maintained separately from the job applicant's or employee's personnel file. +ORC Ann. 4112.05.
Height and Weight Inquiries
The Ohio Civil Rights Commission's Guide for Application Forms and Interviews notes that requiring a prospective employee to be a certain height or weight is not a valid job requirement unless the employer can show that no employee with the ineligible height or weight could do the work.
BFOQ Exception
In some cases, an Ohio employer may defend against a race, color, religion, sex, military status, national origin, disability, age or ancestry discrimination claim by establishing that the individual could not meet a bona fide occupational qualification (BFOQ) reasonably related to the business or occupation. +ORC Ann. 4112.02. Employers should, however, note that many courts have construed the BFOQ exception narrowly. See Little Forest Medical Ctr. of Akron v. Ohio Civ. Rights Comm. +575 N.E.2d 1164 (Ohio 1991).
Ohio provides an avenue for employers to obtain pre-certification of a BFOQ with the Ohio Civil Rights Commission (OCRC), even if the employer is not subject to any pending state law litigation or discrimination charges. +ORC Ann. 4112.02(E); +ORC Ann. 4112.03. In a BFOQ application to the OCRC, an employer must:
· List the specific job classifications for which it is requesting the BFOQ;
· Provide a statement of facts and memorandum of law in support of the application; and
· Provide any other evidence that the employer believes would justify a BFOQ finding.
The OCRC may hold a hearing on the application, and may grant or deny the application. If the commission grants a BFOQ, the grant will be valid for two years, unless the employer applies for and is awarded an extension.
Note, however, that pre-authorization of a BFOQ, or an application for a BFOQ from the OCRC, are not prerequisites to raising a BFOQ defense in response to a charge or in litigation. +OAC Ann. 4112-3-15(D).
References
Ohio law does not restrict employers from seeking references from an applicant's previous employers. The state provides qualified immunity from liability for disclosures made during the course of giving a reference, provided that the disclosure is not known to be false or made with the deliberate intent to mislead the prospective employer, and that it is not made in a discriminatory manner. See Promotions: Ohio > Job Reference Immunity Under Ohio Law.
Smoking
Ohio law does not prevent employers from asking a job applicant if he or she smokes, or from discriminating in hiring on that basis.
Future Developments
There are no developments to report at this time. Continue to check Xpert HR regularly for the latest information on this and other topics.
Additional Resources
Recruiting and Hiring > Interviewing and Selecting Job Candidates
Recruiting and Hiring > Preemployment Screening and Testing: Ohio
Recruiting and Hiring > Recruiting: Ohio
EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records
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Created: July 2017