Mark FuscoJames McWeeny

 

A recent Cuyahoga County ordinance establishes a new and different forum for employees to seek redress for workplace discrimination claims.

The ordinance, enacted by the county’s newly formed Commission on Human Rights, impacts employers in Cuyahoga County that have at least four employees. Employers are prohibited from firing, refusing to hire or otherwise discriminating against applicants and employees based on sexual orientation and gender identity. They are also prohibited from inquiring about an applicant’s sexual orientation or gender identity unless there is a reason related to job qualifications. And they’re forbidden from retaliating against any person who has made a complaint; opposed a practice forbidden by; or assisted in any investigation, proceeding, or hearing under the ordinance.

The commission is responsible for receiving and investigating complaints alleging discrimination based on sexual orientation, gender identity or expression, and it shares jurisdiction over these types of claims with the Equal Employment Opportunity Commission (EEOC).

If an employee files a complaint within 150 days of the alleged discrimination, and the commission finds that the employer engaged in discriminatory conduct, it may issue a cease and desist order. If the employer fails to comply, the order is subject to enforcement through a lawsuit brought by the county. The commission may also order civil administrative penalties of up to $1,000 for a first offense and more than double that for subsequent offenses. Attorney fees and costs may also be awarded to the complainant.

The ordinance creates a new forum for employers to recognize and navigate. It establishes rights not currently recognized under state law and imposes penalties rather than damages, which can be a critical distinction. Notably, penalties may not be covered by an employer’s insurance policy, so employers should contact their legal counsel and consult with their insurance broker to determine whether coverage exists.

Mark Fusco is an attorney at Walter | Haverfield who focuses his practice on litigation and labor and employment law. He can be reached at mfusco@walterhav.com or at 216-619-7839.

James McWeeney is an attorney at Walter | Haverfield who focuses his practice on education and labor and employment law. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.