State ex rel. Republic Steel Corp. v. Ohio Civil Rights Commission

• Decision Date: 24 December 1975
• Docket Number: No. 75-354,75-354
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1394, 11 Empl. Prac. Dec. P 10,641, 73 O.O.2d 478 The STATE ex rel. REPUBLIC STEEL CORPORATION et al., Appellants, v. OHIO CIVIL RIGHTS COMMISSION, Appellee.
• Court: Ohio Supreme Court

Page 178

44 Ohio St.2d 178

339 N.E.2d 658, 16 Fair Empl.Prac.Cas. (BNA) 1394,

11 Empl. Prac. Dec. P 10,641, 73 O.O.2d 478

The STATE ex rel. REPUBLIC STEEL CORPORATION et al., Appellants, v. OHIO CIVIL RIGHTS COMMISSION, Appellee.

No. 75-354.

Supreme Court of Ohio.

Dec. 24, 1975.

Syllabus by the Court

Pursuant to R.C. 4112.05(B), a completed and unsuccessful attempt by the Ohio Civil Rights Commission to eliminate unlawful discriminatory practices by conference, conciliation or persuasion is a jurisdictional prerequisite to the issuance of a complaint by the commission, except where circumstances warrant the issuance of a complaint directly upon receipt by the commission of knowledge of the unlawful discriminatory practices alleged therein. (R.C. 4112.05, construed.)

On November 26, 1974, the Ohio Civil Rights Commission, appellee herein, issued a complaint and notice of hearing charging appellants, Republic Steel Corporation, the United Steelworkers of America, AFL-CIO-CLC, and Locals 1098, 1157, 2265 and 4309 of the United Steelworkers of America, with unlawful discriminatory practices under R.C. Chapter 4112. The complaint noted that the commission had not completed efforts with Republic Steel to eliminate the alleged unlawful practices by means of conference, conciliation and persuasion and, further, that attempted conciliation with the United Steelworkers of America and its local unions had not yet begun.

Appellants filed motions to dismiss, contending, inter alia, that efforts at conciliation were not completed with Republic Steel (or even initiated in the case of the unions) prior to issuance of the complaint and, therefore, a jurisdictional prerequisite for the issuance of a complaint by the commission was not satisfied. The motions were denied by the commission.

On February 11, 1975, Republic Steel filed a complaint for a writ of prohibition in the Court of Appeals for Cuyahoga County, seeking to restrain the commission from continuing with further proceedings against the company. Subsequently, the United Steelworkers of America and the unions filed a motion to intervene on behalf of Republic Steel and, on February 18, 1975, an amended complaint for writ of prohibition was filed by the appellants herein. On the same day, the commission filed a motion to dismiss, asserting that the complaint failed to state a claim upon which relief could be granted.

In a split decision, the Court of Appeals upheld the commission's contention and dismissed the complaint. The cause is now before this court as a matter of right.

Metzenbaum, Gaines & Stern Co., L. P. A., Melvin S. Schwarzwald, Mark A. Rock, Cleveland, Bernard Kleiman, Chicago, Ill., and Carl B. Frankel, Pittsburgh, Pa., for appellant unions.

Jones, Day, Reavis & Pogue, Victor E. DeMarco, James C. Sennett, Jr., Dennis M. Kelly and David G. Schryver, Cleveland, for appellant Republic Steel Corp. William J. Brown, Atty. Gen., Andrew J. Ruzicho and Louis A. Jacobs, Columbus, for appellee.

HERBERT, Justice.

Appellants contend that the statutory language within R.C. 4112.05(B), concerning efforts to resolve alleged discriminatory practices by conciliation, is a jurisdictional prerequisite to the proper issuance of a complaint by the Ohio Civil Rights Commission.

R.C. 4112.05(B) sets forth specific procedures to be followed by the commission and, in pertinent part, states:

'Whenever it is charged in writing and under oath by a person, referred to as the complainant, that any person, referred to as the respondent, has engaged or is engaging in unlawful discriminatory practices, or upon its own initiative in matters relating to any of the unlawful discriminatory practices enumerated in division (A), (B), (C), (D), (E), (F), (I), or (J) of section 4112.02 of the Revised Code, the commission may initiate a preliminary investigation. * * * If it determines after such investigation that it is probable that unlawful discriminatory practices have been or are being engaged in, it shall endeavor to eliminate such practices by informal methods of conference, conciliation, and persuasion. * * * If, after such investigation and conference, the commission is satisfed that any unlawful discriminatory practice of the respondent will be eliminated, it may treat the complaint as conciliated, and entry of such disposition shall be made on the records of the commission. If the commission fails to effect the elimination of such unlawful discriminatory practices and to obtain voluntary compliance with Chapter 4112 of the Revised Code, or, if the circumstances warrant, in advance of any such preliminary investigation or endeavors * * * the commission shall issue and cause to be served upon any person or respondent a complaint stating the charges in that respect and containing a notice of hearing before the commission * * *.'

By drafting R.C. 4112.05(B) in the above manner, the General Assembly established definite guidelines for the commission to follow prior to issuance of a complaint. First, the commission must make a preliminary investigation to ascertain whether unlawful discriminatory practices exist or were engaged in. Second, if such investigation results in an affirmative finding by the commission, it 'shall endeavor to eliminate such practices by informal methods of conference, conciliation, and persuasion.' (Emphasis added.) The commission is authorized to issue a complaint stating the charges and giving notice of a hearing only when efforts at conciliation have been completed and have filed to remedy the problems by voluntary compliance. ¹ When it employed the chosen language in R.C. 4112.05(B), concerning pre-complaint directives for conciliation, it is clear that the General Assembly intended a completed attempt at conciliation to be a condition precedent to the issuance of a complaint.

The commission's own rules and regulations support the statutory requirement that an accomplished effort at meaningful conciliation precede the complaint. Rule 5.02 states:

'Where the facts indicate that it is probable that any unlawful discriminatory practices have been or are being engaged in, the director shall immediately refer the matter to the commission with a recommendation for proceeding with conciliation. If the commission determines such probable cause does exist, the commission shall instruct the Director to endeavor to eliminate all unlawful discriminatory practices by conference, conciliation and persuasion.'

Rule 9.01 provides, in part:

'After the commission determines that it is probable that any unlawful discriminatory practices have been or are being engaged in against complainant or others and after the commission fails to effect the elimination of such unlawful discriminatory practices by conciliation * * * the commission shall issue and cause to be served upon all parties thereto or their attorneys of record, if any, a complaint containing a notice of hearing before a hearing examiner.'

Under federal law, the Equal Employment Opportunity Commission (EEOC) was established to prevent unlawful employment practices. The EEOC operates under a statutory framework similar to R.C. 4112.05(B) in relation to procedures prior to the initiation of an action in court. ² As can be seen, Section 2000e-5(b), Title 42, U.S.Code, employs mandatory language identical to R.C. 4112.05(B) concerning efforts by the EEOC to achieve voluntary compliance after unlawful practices are found to exist.

In construing the relevant language in Section 2000e-5(b), the federal courts have consistently held that the EEOC may not initiate a civil action without first attempting, in good faith, to correct the situation by conciliation. In Equal Employment Opportunity Comm. v. Griffin Wheel Co. (N.D.Ala.1973), 360 F.Supp. 424, the court stated, at page 426:

'The inability of the Commission to secure from defendant a conciliation agreement acceptable to the Commission is a prerequisite * * * which must be satisfied before the Commission can file a civil action. In amending Title VII in 1972 to allow the Commission to maintain suit on its own behalf, Congress emphasized the duty of the Commission to make a good faith effort to secure...