Governor Strickland Appoints Barbara Sykes as New Chairperson

On October 1, 2007, Barbara Sykes begins her tenure as Chairperson of the Ohio Civil Rights Commission. Appointed by Governor Ted Strickland, she replaces Jeanine Donaldson and will serve a 5-year term in office.

A graduate of the University of Akron (where she earned a Bachelor's Degree in Social Work and a Master's Degree in Public Administration) Chair Sykes has an extensive and distinguished history of public service to the citizens of Ohio. As a former councilwoman for the city of Akron from 1983 until 1987, and councilwoman-at-large until 1989, Ms. Sykes is recognized as the first female of color to hold a seat on city council. She later continued her career of public service as Deputy Auditor of Administration for Summit County. Most recently, she served as state representative for the 44th District in the Ohio House of Representatives, during which time she also served as President of the Ohio Legislative Black Caucus.

"Chair Sykes brings a wealth of public sector leadership and experience to the Commission," said G. Michael Payton, OCRC Executive Director. "We look forward to carrying out her initiatives for this agency and being a part of her vision for civil rights policy and enforcement in the State of Ohio."

Celebrating Chair Jeanine Donaldson

The OCRC bids farewell to former Chair Jeanine Donaldson who was appointed as a Commissioner of the agency in 2002 and subsequently named Chairperson earlier this year. Ms. Donaldson holds the distinct honor of being named as the agency's first female Chairperson of the agency in its 48-year history. Chair Donaldson is succeeded by Barbara Sykes of Akron, Ohio.

During her short time as Chairperson, the agency made strides in adopting policy guidance, proposing administrative rule changes and strengthening relationships with core constituent groups and community leaders. Chair Donaldson's career with the OCRC was extremely influential in furthering civil rights protections in the state of Ohio.

Ms. Donaldson's commitment to civil rights and community activism is recognized throughout the state of Ohio. She will continue to serve as Executive Director of the Elyria YWCA, Vice-President of Lorain Board of Education as well as an active member of various other boards and organizations.

"We are very proud to have worked under the leadership of Chair Donaldson," said OCRC Executive Director G. Michael Payton. "She contributed a vibrant vision and an energetic dynamic to the mission of our agency. We are certain that we will continue to hear about future successes in Chair Donaldson's career."

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OCRC Joins with NAACP to Combat Discrimination

The Ohio Civil Rights Commission (OCRC) and National Association for the Advancement of Colored People (NAACP) signed a Memorandum of Understanding (MOU) at the NAACP's Statewide Convention in Columbus on September 15th. The MOU is designed to forge a formal working relationship and understanding between the two entities, with the purpose of developing expanded methods of interaction on discrimination enforcement and education issues.

"The OCRC and Ohio Conference NAACP have a mutual mission of studying the problems of and eliminating discrimination, ensuring equal opportunity and spreading goodwill," said OCRC Executive Director G. Michael Payton. "We are pleased to formally recognize and enhance the contributions our partners make in protecting civil rights in the State of Ohio."

The MOU is a first step in joining with community organizations to work cooperatively in filing amicus briefs, enhancing education and outreach, identifying and sharing strategic enforcement issues and information, and filing charges of discrimination.

"Throughout the state, people are dealing with complex issues such as predatory lending, insurancemortgage redlining, employment and housing discrimination, and racial profiling," said Ohio NAACP President Sybil Edwards-McNabb. "This agreement will help solidify our partnership to actively enforce our civil rights protections in Ohio and enhance racial equality, harmony and education."

At this event, the Ohio Conference NAACP presented G. Michael Payton with the prestigious NAACP Vanguard Award in honor of his commitment and dedication to civil rights advocacy.


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Leave for Pregnant Employees: Protecting Ohio's Working Mothers


Today, more and more women in the workplace are finding themselves taking on the role of both primary caregiver and full-time employee. As a result, a disproportionate number of female employees shoulder a unique responsibility in the workplace--motherhood, a responsibility that often requires a leave of absence, a modified work schedule or some other form of accommodation.

All too often, however, these options are either insufficient, not applicable, or nonexistent due to employment practices that on the surface appear neutral and equally applied, but in reality create an unfair, gender-specific disadvantage for women. The Ohio Civil Rights Commission is committed to identifying and eliminating antiquated employment practices that unfairly target or affect women, and advancing policies that will enhance equality and fairness in the workplace, especially for pregnant employees.

On June 21, 2007, the Ohio Civil Rights Commission approved a proposed revision to Ohio Administrative Code Section 4112-5-05(G), the administrative rule on pregnancy discrimination. This proposed revision clarifies that an employment policy that does not provide up to 12 weeks of unpaid pregnancy/maternity leave results in a disparate impact on women and must be justified by business necessity. It also clarifies that a pregnant employee must be treated the same as other employees who are similar solely in their ability or inability to work, regardless of whether she is also similar in all other material respects (e.g., position, length of service, cause of medical condition, etc.).

A public hearing was held on August 1, 2007 for the purpose of receiving comments, proposals and recommendations from those persons and parties affected by, or otherwise interested in, the proposed revision to the rule on pregnancy discrimination. The written comments and testimony will be provided to Commissioners for review and further discussion is expected to take place at the public meeting of October 25, 2007.

Despite the initial reaction of the Ohio Chamber of Commerce and other similar organizations representing business interests, the legal duty of Ohio employers to provide pregnancy leave is nothing new. The current version of the administrative rule on pregnancy discrimination which was adopted in 1977 and has now been in effect for nearly 3 decades requires that employers provide pregnancy leave "for a reasonable period of time," makes it illegal to terminate a female employee under a policy providing "insufficient" or no pregnancy leave, and requires that pregnant employees be returned to their original or similar job upon signifying their intent to return to work within a "reasonable time." The proposed revision to this rule merely takes the guesswork out of the process by changing "reasonable period" to a straight 12 weeks.

A commonly asked question, not surprisingly, is "Why 12 weeks?" The answer, simply put, is that 12 weeks is generally accepted as the amount of time that a pregnant employee needs to be away from work, accounting for both pre- and post-childbirth absences. In fact, this is the very position that the Ohio Civil Rights Commission adopted in the case of Ohio Civil Rights Commission v. McKesson HBOC, Inc. (OCRC Complaint No. 8910). Twelve weeks of leave, the Commission explained, is reasonable because most pregnancies, including those in which complications arise, do not require an absence of work for longer than 12 weeks, and, more specifically, requiring a minimum of 12 weeks of leave "balances the employee's need to be off work for pregnancy and pregnancy-related reasons and still retain their jobs and the needs of employers to have a stable and trained work force to run their businesses."

In summary, the Ohio Civil Rights Commission firmly believes that the proposed revision to the administrative rule on pregnancy discrimination effectuates the purposes of Ohio's Pregnancy Discrimination Act and best protects Ohio's working mothers and their families.

To view the proposed amendment, please click here.

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Wage Discrimination: Proposed Rule Clarifies that Discrimination Occurs with Each Paycheck

In Ledbetter v. Goodyear Tire & Rubber Co., Inc. (U.S. 2007), __ U.S. __, 127 S. Ct. 2162, 167 L.Ed.2d 982, the U.S. Supreme Court held that a discriminatory practice occurs, and the statute of limitations for filing a charge begins to run, when the decision to pay a discriminatory wage is made, not each time thereafter that a lower wage is paid based upon the earlier discriminatory decision.

As a practical matter, this decision greatly limits the ability of employees adversely affected by wage discrimination to obtain full and meaningful relief. As pointed out in the dissenting opinion in Ledbetter, "[p]ay disparities often occur . . . in small increments," "cause to suspect that discrimination is at work develops only over time," and
"[c]omparative pay information . . . is often hidden from the employee's view." Put differently, "[i]t is only when the disparity becomes apparent and sizeable, e.g., through future raises calculated as a percentage of current salaries, that an employee . . . is likely to comprehend her plight . . . and complain." The bottom-line under the Ledbetter decision is that, by the time an employee is able to deduce that she has been the victim of wage discrimination, it is highly probable that it will be too late for her to do anything about it.

The Ohio Civil Rights Commission, however, has taken prompt action to ensure that this narrow, restrictive reading of Title VII is not hastily and thoughtlessly applied to wage discrimination cases arising under the Ohio Laws Against Discrimination, as set forth in Chapter 4112 of the Ohio Revised Code. On August 23, 2007, the Commissioners approved a proposed amendment to Ohio Administrative Code Section 4112-5-02, which defines the phrase "unlawful discriminatory practice" with respect to wage discrimination to include not only the decision to pay discriminatory wages, but also each time discriminatory wages are actually paid (i.e., each paycheck is a new violation). Specifically, the proposed amendment is as follows:

4112-5-02 Definitions

* * *

(L) "Unlawful discriminatory practice" means, with respect to discrimination in compensation, the payment of wages, salaries, benefits or other compensation infected by, or otherwise resulting from, discrimination based upon race, color, religion, sex, national origin, disability, age or ancestry. Such practice is committed when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, salaries, benefits or other compensation is paid.

While this rule would potentially permit a person to recover for wage discrimination over a period of several years, an employer is able to raise the equitable defense of laches. This defense bars recovery where a person unreasonably delays asserting a claim, has actual or constructive knowledge of an injury, has no excuse for the delay, and allowing the claim to proceed would prejudice the employer (i.e., due to the delay).

A public hearing on this proposed amendment is tentatively scheduled for November 2007.

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OCRC Issues Policy Guidance on the Use of Credit Reports

On August 23, 2007, the Commissioners approved Policy Guidance 2007-01, entitled "Consumer Credit Reports and the Discriminatory Impact on Minority Applicants." The purpose of the policy guidance is to advise employers that the use of consumer credit reports in making hiring decisions has a racially discriminatory impact on minority job applicants, and to advise employers that consumer credit reports should not be used to screen or disqualify otherwise qualified applicants, except when job-related and based upon a legitimate, and objectively verifiable, business necessity.

A growing number of employers are using consumer credit reports as a tool for screening job applicants. What makes this practice extremely troubling, however, is the substantial racial disparity that exists with respect to who has "good" versus "bad" credit. According to several studies, including a survey conducted by Freddie Mac, poor or bad credit continues to be a common problem in today's society, particularly for minority borrowers who are nearly twice as likely as Whites to experience credit problems.

In light of this racial disparity, the problem with respect to using consumer credit reports to screen job applicants is the dearth of data, studies, or other reliable evidence to support the existence of some correlation between credit history and job performance. Where an otherwise facially neutral policy results in a racially discriminatory impact, the law places a heavy burden on the employer to justify its use of the policy. However, a recent study conducted by researchers at Eastern Kentucky University, and the only known study to examine this issue, concluded that there is no correlation between an employee's consumer credit report and job performance. The use of consumer credit reports appears to be founded in large part on the superficial assumption that people with bad credit will turn out to be bad employees, which hardly constitutes a business necessity.

In the light of the discriminatory impact on minority job applicants, employers should be extremely cautious in their use of consumer credit reports as a tool for screening job applicants. The policy guidance, as approved, makes clear that when an applicant is denied employment on the basis of his or her consumer credit report, the employer should have valid, objective proof--preferably in the form of a job validation study--that its use of these reports is not only related to the job in question, but also based upon a business necessity.

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OCRC Launches 2008 Dr. Martin Luther King, Jr. Art, Essay & Multimedia Contest

The Ohio Civil Rights Commission is pleased to announce our annual statewide 2008 Dr. Martin Luther King, Jr. Art, Writing & Multimedia Contest. The purpose of this contest is to enhance cultural awareness, empowerment, tolerance, and to honor and encourage leadership for a multi-cultural society. Through the example of major role models, such as Dr. Martin Luther King, Jr., students creatively interpret these teachings through art, writing, and multimedia. We believe that it is important that the lessons and beliefs that affect students today will encourage them to be leaders for diversity for tomorrow.

What the students see at first as a "contest" is actually a youth leadership development program. The contest serves as a point of entry for the students and the work and thoughtfulness required to complete the project provides a learning and reflective experience. The winners will be honored by community and business leaders at an event that will take place during the month of February 2008 in the state's Capitol. Further, their artwork, essays, and multimedia projects will be proudly displayed throughout the year.

Please click here for contest details.

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UPCOMING EVENTS

For a complete calendar of OCRC events click here.

October
4th -Commission Meeting
Cleveland Heights City Council Chambers
40 Severance Circle
Cleveland Heights, OH 44118


25th -Commission Meeting
30 East Broad Street
Rhodes State Office Tower
1st Floor Lobby Hearing Room
Columbus, OH 43215


November
15th -Commission Meeting
30 East Broad Street
Rhodes State Office Tower
3rd Floor Lobby Hearing Room
Columbus, Ohio 43215


December
13th -Commission Meeting
30 East Broad Street
Rhodes State Office Tower
3rd Floor Lobby Hearing Room
Columbus, Ohio 43215



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