Little Forest Medical Ctr. of Akron v. Ohio Civ. Rights Comm.

Citation61 Ohio St.3d 607,575 N.E.2d 1164
Decision Date04 September 1991
Docket NumberNo. 90-1052,90-1052
Parties, 56 Fair Empl.Prac.Cas. (BNA) 1473, 60 Empl. Prac. Dec. P 41,894, 60 USLW 2251 LITTLE FOREST MEDICAL CENTER OF AKRON, Appellee and Cross-Appellant, v. OHIO CIVIL RIGHTS COMMISSION, Appellant and Cross-Appellee.
CourtUnited States State Supreme Court of Ohio

SYLLABUS BY THE COURT

Where, in an action brought pursuant to R.C. Chapter 4112 challenging alleged f acially discriminatory employment practices, the employer seeks to justify gend er-specific hiring criteria on the basis that such criteria constitute a bona f ide occupational qualification, the burden is upon the employer to prove (1) th at the gender-based criteria involve the essence of the employer's business, an d (2) either that (a) all or substantially all members of the gender excluded b y the employer are incapable of performing the job safely and efficiently, or ( b) it is impossible or impractical to make determinations of each applicant's q ualifications in a nondiscriminatory manner.

On June 19, 1986, Rayferd Lawson ("complainant") submitted an employment application to defendant-appellee and cross-appellant, Little Forest Medical Center of Akron, to work as a nurse's aide or electrocardiogram technician at a wage rate of $5 per hour. Appellee is a skilled nursing facility serving two hundred fifty-six elderly patients, approximately eighty percent of whom are female. Its workforce includes ten registered nurses, forty licensed practical nurses and sixty-seven nurse's aides. All of the nurse's aides are female.

The duties of nurse's aides include some intimate personal contact with patients but other responsibilities merely entail feeding, housekeeping and providing mobility for residents. Following his application for this position, complainant was informed by the head nurse that he could not be hired. The sole reason for this decision was his gender.

On October 29, 1986, complainant filed a charge of gender discrimination with appellant and cross-appellee, Ohio Civil Rights Commission. On May 4 1987, appellee offered complainant employment as a maintenance worker at a wage rate of $.70 an hour more than the nurse's aide position. Following investigation, a complaint was issued against appellee by appellant on July 9, 1987. On August 20, 1987, appellee filed a motion for summary judgment. On August 31, 1987, appellant filed a memorandum in opposition to appellee's motion for summary judgment. The motion was denied by Hearing Examiner Debra J. Tucker on September 4, 1987. On September 10, 1987, the case was reassigned to Hearing Examiner Franklin A. Martens. A hearing was held on the complaint on October 14, 1987. At this time, the hearing examiner granted appellant's motion for leave to secure an expert witness. Shortly thereafter, appellee served upon appellant certain interrogatories requesting disclosure of the identity of expert witnesses and the nature of the testimony sought to be elicited from them. As of December 2, 1987, appellant had not responded to these interrogatories, and on that date, appellee filed a motion to compel discovery. A motion in limine was thereafter filed by appellee on December 23, 1987, seeking to exclude testimony by appellant's expert witness. On January 7, 1988, appellee's motion in limine and motion to compel discovery were denied. The hearing on the complaint continued on January 19, 1988. Following the presentation of additional evidence on May 24, 1988, the hearing examiner issued findings of fact and conclusions of law on August 15, 1988. The hearing examiner recommended that the commission issue a cease and desist order to appellee, order appellee to offer employment to complainant as a nurse's aide, order back pay to complainant from June 17, 1986 to the date of the offer of employment, and order appellee to refrain from taking any action to discipline, demote or discharge complainant within one year of his employment without notifying the commission within ten days thereof and providing the reasons therefor.

On October 6, 1988, these recommendations were adopted by the commission. Appellee filed a complaint and petition for review of the final order of the commission with the Summit County Court of Common Pleas on October 31, 1988. On September 27, 1989, the common pleas court affirmed the decision of the commission. Appellee filed a notice of appeal of this determination with the Court of Appeals for Summit County on October 19, 1989. On April 11, 1990, the court of appeals affirmed in part and reversed in part the decision of the common pleas court. The appellate court concluded that the commission did not err in overruling appellee's motion in limine, motion to compel discovery and motion for summary judgment. However, the court did conclude appellant erred when it imposed a burden on appellee to prove that it could not rearrange its work assignments to eliminate the privacy problem. The court held that the burden of proof in these cases rests solely with appellant. Moreover, the appellate court concluded that the offer by appellee to complainant of employment as a maintenance man tolled the accrual of back pay because the position constituted substantially similar employment to that which was sought. On May 10, 1990, appellant filed an appeal of the court of appeals' decision. On May 21, 1990, appellee filed a cross-appeal.

The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Joondeph & Shaffer, David H. Shaffer and Michael J. Spetrino, Akron, for appellee and cross-appellant.

Lee I. Fisher, Attorney General, and Gregory J. Vincent, Columbus, for appellant and cross-appellee.

Isaac, Brant, Ledman & Becker, David H. Meade and Barbara L. Kozar, Columbus, urging reversal for amici curiae, Ohio Chapter of the National Organization for Women, Committee Against Sexual Harassment, Nat. Ass'n of the Physically Handicapped, Courage, Inc., and the Ohio Employment Lawyers Ass'n.

SWEENEY, Justice.

I

The present action was initiated pursuant to R.C. Chapter 4112. R.C. 4112.02(A) provides as follows:

"It shall be an unlawful discriminatory practice:

"(A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." (Emphasis added.)

In Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196, 20 O.O.3d 200, 202-203, 421 N.E.2d 128, 131, this court concluded that the evidentiary standards applicable to a determination regarding a violation of Title VII of the Civil Rights Act of 1964 were likewise operable with respect to ascertaining whether a violation of R.C. Chapter 4112 has occurred. In this regard the court observed:

" 'Reliable, probative, and substantial evidence' is not defined in the statute [i.e., R.C. 4112.05(G), which establishes the evidentiary standards for finding an unlawful discriminatory practice under R.C. Chapter 4112]. In previous cases, however, we have determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112. Republic Steel v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d 178 ; Weiner v. Cuyahoga Community College District (1969), 19 Ohio St.2d 35 [48 O.O.2d 48, 249 N.E.2d 907]. Cf. Youngblood v. Dalzell (1973), 6 EPD para. 8719 (S.D. Ohio, W.D.). Thus, 'reliable, probative, and substantial evidence' in an employment discrimination case brought pursuant to R.C. Chapter 4112 means evidence sufficient to support a finding of discrimination under Title VII."

Thus, the requisite burdens of proof regarding particular evidentiary issues established by the federal courts are relevant in determining whether there exists reliable, probative and substantial evidence of discrimination in violation of R.C. Chapter 4112.

The evidentiary issues and the respective burdens of the parties vary according to the nature of the discriminatory conduct in question. The appropriate standard is therefore dependent upon the criteria utilized by the employer to arrive at its employment decision. Where facially discriminatory employment criteria are applied, such practices constitute "disparate treatment" of a person entitled to protection under the law. Where facially neutral criteria are applied and the application of the criteria results in discriminatory consequences to members of the protected class, such practices are said to produce a "disparate impact" upon the affected individuals.

While the ultimate determination in both species of cases inevitably concerns the existence or nonexistence of unlawful employment discrimination, the legal inquiry is markedly different in several important respects. At the outset, it must be emphasized that the plaintiff bears the burden of establishing the existence of discriminatory motive only in cases involving disparate treatment. See Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 245-246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268, 285. In a disparate impact case, discriminatory motive is irrelevant. Watson v. Fort Worth Bank & Trust (1988), 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827. In the latter type of case, the plaintiff may prevail if she establishes that the employer has engaged in a specific practice which has excluded from employment members of a protected class. Id. at 994, 108 S.Ct. at 2788-2789, 101 L.Ed.2d at 845. This demonstration may be made through statistical evidence revealing a discrepancy between the composition of the workforce at issue and the composition of the pool of...

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