THE ROAD TO EQUALITY AND THE PASSAGE OF THE FIRST CIVIL RIGHTS LAW IN OHIO

“But every just man, jealous of his own rights, should have a heart open to feel, an ear open to hear, and an eye quick to see the invasions of the rights of others, especially of this race, long bound in the chains of slavery, and deprived of legal personality. It is for you, therefore, to consider whether there is any danger in this direction to any citizen or sojourner in Ohio, and if there be, to provide by apt legislation in advance, for prompt and severe punishment, not discriminating, however, between white and black, but furnishing the same relief against the same wrong to both.”

Governor George Hoadly Inaugural Address to the Ohio General Assembly, 1884 In the summer of 1843, almost two Although the Ohio Constitution of decades prior to the start of the 1803 outlawed slavery in the state great Civil War fought by a Nation (a requirement of the Northwest Or‐ divided by the issue of slavery, Afri‐ dinance of 1787), African Americans can Americans from across Ohio still faced invidious discrimination convened for three days in the state in all facets of life, and in fact some capital. The purpose of the Conven‐ African Americans were still held as tion of Colored Persons of Ohio was slaves in southern Ohio. to address the plight of African While a growing number of African Americans and other persons of Americans moved to cities such as color throughout the state, to draw Cincinnati and Cleveland looking for attention to those laws and practices employment as factory workers or perpetuating discrimination, and to other skilled professions, they usu‐ call upon all Ohioans to end the in‐ ally ended up being employed in justices suffered by so many on ac‐ lower paying occupations. In the cit‐ count of race and color. ies, they tended to live in the same neighborhoods, due in part to dis‐ crimination, but also in part due to self‐preservation and protection from slaveholders intent on return‐ ing them to slavery.

In the late 1820’s, race riots oc‐ curred in several cities, including Cincinnati where Irish immigrants were at odds with the African American community and the in‐ creased competition for employ‐ ment from African American resi‐ LEFT: An ex­slave standing at the start of the dents. In Portsmouth, the African trail used by fugitive slaves on their way American families and residents to the John Rankin House in Ripley, Ohio. were actually forced out of their homes and the community. While many African Americans left tions of African Americans, past, Ohio for new—and safer—lives in present and future, living as second Canada, many others remained. class citizens in a country founded Some even formed their own com‐ on liberty, freedom and equality. munities such as Carthagena in Mer‐ cer County (only to be driven out “The Committee appointed by a several years later). Convention of the colored people of this State . . . would respectfully ad­ Across the state, African Americans dress you on certain points, which were denied fundamental civil liber‐ are to them at least of the utmost ties and basic human rights. They importance. could not vote, serve on a jury, tes‐ tify against a White person or send We would briefly call your atten­ their children to public schools. In‐ tion to our condition among you; deed, in an effort to prevent African and to the unjust and impolite Americans from moving to the state, course which is pursued toward us; the Ohio General Assembly passed a a course which grants us the name law requiring African Americans to of freemen, but robs us of their at­ post bond of five hundred dollars to tributes—which endeavors to blast ensure their good conduct. our prospects, and stifle every ef­ fort which we may put forth for As a result of these and other im‐ our moral and intellectual ad­ measurable injustices endured by vancement. African Americans in Ohio, the Con‐ vention of Colored Persons of Ohio We would ask you, whether this appointed a committee to draft a course is in accordance with the statement to the people of Ohio on principles which lie at the founda­ behalf of its attendees and those tion of this government, and which whose hopes, dreams and aspira‐ you, as Americans, are bound to tions they represented. support.“

In just a few words, this committee Convention of Colored Persons conveyed with an unwavering verac‐ of Ohio Address to the Citizens ity the hopes and dreams of genera‐ of Ohio Despite the need for civil rights in Ohio and across the country at the time, little would change until the Civil War and the passage of the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution.

Above: 127th Regiment, Ohio Volunteer Infantry. The first complete African- American regiment recruited in Ohio. Left: Poster for production of “Uncle Tom’s Cabin” in Wilmington, Ohio.

Even then, commitment to the letter and spirit of these amendments was sparse, and this was as true in Ohio as any other state. Indeed, while the Ohio General Assembly easily ap‐ proved the Thirteenth Amendment, which outlawed slavery, the Fif‐ teenth Amendment and its guaran‐ tee of the right to vote for African American men passed the Ohio Sen‐ ate and Ohio House of Representa‐ tives by one and two vote margins, respectively. (It should be noted that women, regardless of race or color, still could not vote in Ohio.) The specific prohibition against race and color discrimination was set The ratification of the Fourteenth forth in Section 1: Amendment and its guarantee of equal protection under the law, how‐ A]ll persons within the jurisdic­ ever, proved more problematic. The tion of said State shall be enti­ amendment was initially ratified in tled to the full and equal enjoy­ 1867, but that action was revoked ment of the accommodations, one year later. advantages, facilities and privi­ leges of inns, public conveyances It was not until 2003, after law stu‐ on land or water, theaters and dents at the University of Cincinnati other places of public amuse­ brought this oversight to the atten‐ ment, subject only to the condi­ tion of legislators, that the Ohio Gen‐ tions and limitations established eral Assembly approved the Four‐ by law, and applicable alike to teenth Amendment. citizens of every race and color, Nevertheless, Ohio was one of the regardless of any previous con­ first states in the nation to enact a dition of servitude. civil rights law, the purpose of which The debate on the new civil rights was to protect and secure equal law was contentious, and often rights for African Americans and to times personal. Opponents of this prevent discrimination against them legislation argued that its purpose in all places of public accommoda‐ (and effect) was to confer special tion, resorts, institutions and places rights and privileges upon the Afri‐ of amusement. can Americans that were not pos‐ Introduced in the Ohio Senate by sessed and enjoyed by other citizens Senator William S. Crowell of the state. Proponents, on the (Coshocton County) on January 14, other hand, argued that this legisla‐ 1884, Senate Bill 12 was passed by tion was necessary in that the rights both the Ohio Senate and Ohio of Ohio’s African American citizens House of Representatives in a matter were flagrantly and frequently of weeks, and took effect on Febru‐ abused. ary 7, 1884. Their position was that the true pur‐ The law, however, was less than per‐ pose of this legislation was to do fect, primarily because it failed to nothing more than ensure equality fully address the societal harms and by prohibiting discrimination on the personal injustices at the time so basis of race or color, except on con‐ frequently visited upon African ditions and limitations applicable Americans. alike to all citizens. To begin with, the new civil rights One particularly contentious point law enumerated and covered few concerned the scope of the law. Dur‐ places of public accommodation— ing the debate in the Ohio House of inns, public conveyances on land and Representatives, an amendment was water, theatres and other places of offered to amend the proposed bill amusement. The new law, moreover, by making its prohibitions against provided meager—and, as would race and color discrimination appli‐ soon be obvious, unpredictable— cable to eating houses and restau‐ relief to the victims of discrimina‐ rants. tion who filed a civil action against the party who violated the law, and Those members opposed to the offered a very lenient punishment amendment argued that it was not for those persons who violated the offered in good faith, but rather law under the criminal component solely for the purpose of delay. In of the statute. On top of this, a suc‐ response, supporters of the amend‐ cessful civil lawsuit precluded a ment contended that those in oppo‐ criminal prosecution, and vice versa. sition “intended, for the purpose of deceiving the colored people, to give Suffice to say, it was evident from them the semblance but not the sub‐ the start that the new civil rights law stance of a law protecting them in all failed to take the steps necessary to their rights.” The proposed amend‐ afford African‐Americans substan‐ ment was defeated. tial protection of their civil rights, which, of course, was the goal of the After its passage, the new civil rights legislation. law was widely heralded as a step in the right direction. Less than one month after its initial passage, during the same legislative While certainly an improvement to session, Senator Crowell introduced the original enactment, at least in Senate Bill 154 to amend the new terms of the scope and coverage of civil rights law by specifically enu‐ the law, the remedy and penalty pro‐ merating other places of public ac‐ visions remained unchanged. commodation. This amendment ex‐ Regardless of the egregiousness of tended coverage of the law to restau‐ the discriminatory conduct, and no rants, eating houses, barber shops matter how injurious such conduct by designated them as places of pub‐ was to the victim, a civil action lic accommodation, as well as ex‐ would award to the victim no more tending coverage of the law to “all than One Hundred Dollars and in other places of public accommoda‐ some cases only Five Dollars or even tions.” less. In a criminal action, a person The first places of public accom­ found guilty of violating the law modation to be subjected to the faced imprisonment for not more new civil rights law were roller than thirty days and a fine not ex‐ rinks. Between 1884 and 1886 ceeding One Hundred Dollars, mak‐ numerous cases were filed ing the penalty a small price to pay against roller rinks in Youngs­ and violating the law a minimal risk town, Cleveland and other cities. to take.

The conduct of those proprietors Even as amended, the civil rights law in refusing admission to African served as little deterrent to those American patrons was compared persons intent on denying African‐ to that of “chivalrous Southern Americans equal rights in places of brutes.” While some proprietors public accommodations. In the were actually arrested, it was years following its enactment and generally recognized that the subsequent amendment, it became penalty was not sufficient, and increasingly apparent that the rem‐ that only several successful law­ edy and penalty provisions were suits would make the point where hampering effective enforcement. it counts (i.e., monetary profits). A series of early cases brought against the proprietors of several tling for different reasons. In Hargo roller skating rinks in Youngstown to v. Harf & Cramer, the court practi‐ redress acts of blatant racial dis‐ cally eviscerated the civil rights law crimination against African Ameri‐ by holding that it could not be made can patrons, for example, resulted in to apply to an incorporated restau‐ only two favorable verdicts, and the rant business, where that business’s damages awarded were simply in‐ existence was not dependent upon sulting. In one of the cases, a jury obtaining a license for its operation. determined that fifty cents would The court then went on to hold that cover the damages incurred by the the owner could exclude any person, plaintiff having been refused admis‐ whether white or colored, reasona‐ sion to the roller skating rink on ac‐ bly or unreasonably: count of his race, while in the other “[A] man desiring to open such a case a jury determined that one cent business does not have to ask would suffice. permission or license of the pub­ A few years later, an African Ameri‐ lic, and the public have no con­ can patron brought two successful cern with it, hence he could ex­ lawsuits after he was refused the clude part or all of the public at privilege of dining at two restau‐ will. He might choose to sell only rants in Cincinnati. In one case, he to people following a particular was awarded twenty‐five dollars occupation, or of a certain age, against the proprietors of one res‐ or of a certain nationality, and taurant, but only one cent against the law could not compel him to the proprietors of the other restau‐ abandon his whims or caprices. rant . These and other cases made it It follows that if he can exclude perfectly clear that the absence of a any white man or class of whites, minimum penalty made it possible he can exclude for color, and that for prejudiced courts and jurors to the law merely says that when­ undermine cases won by victims of ever he cannot exclude at will he discrimination by awarding only cannot exclude for color.” nominal damages.

Some cases, moreover, were unset‐ As these and other cases demon‐ strated, discrimination continued unabated and unabashed through‐ out the state, frustrating both the letter and the spirit of the civil rights law. As aptly summarized by one leading advocate of the time—

“The penalty, as the law now stands, is so small that those who discriminate against us in public places of amusement and elsewhere do not fear it and Harry C. Smith Afro­Americans are not encour­ aged to sue under it.” Harry C. Smith was an African After almost a decade of mediocre American journalist, publisher deterrence and enforcement, how‐ and legislator from Cleveland, ever, the civil rights law began a sig‐ Ohio. He co­founded The Cleve­ nificant transformation. The Honor‐ land Gazette newspaper in 1883, able Harry C. Smith, an African and served as the paper’s owner American Representative (Cuyahoga and editor for more than fifty County), quickly understood the years. Through The Cleveland Ga­ law’s inherent shortcomings and zette, he championed various took action to remedy those defi‐ civil rights issues and causes ciencies. throughout the state.

On January 16, 1894, Representative In 1892, Harry C. Smith was Smith introduced House Bill No. 141 elected to the Ohio General As­ to amend the civil rights law by in‐ sembly, where he served three creasing the severity of the redress terms. After his last term, he re­ and penalty clauses. turned to Cleveland and contin­ ued to publish The Cleveland Ga­ This legislation was enacted and be‐ zette. . He died in 1941. came law on February 7, 1894. The amendment, known as The civil action, instead of receiving only Smith Amendment, changed the a nominal monetary amount, the monetary penalty provision from a victim of discrimination, if success‐ fine “not to exceed One Hundred ful in his or her legal action, was Dollars” to a fine “not less than Fifty given the right to recover not less Dollars nor more than Five Hundred than Fifty Dollars and up to Five Dollars, or imprisonment not less Hundred Dollars against any person than thirty days nor more than who violated the law. Likewise, in a ninety days or both.” criminal action, the defendant would be fined at least Fifty Dollars and up In 1893, a similar bill was intro­ to Five Hundred Dollars, and faced a duced in the Ohio House of Rep­ minimum prison term of at least resentatives to increase the pen­ thirty days and up to ninety days. alties under the civil rights law. Without a doubt, The Smith Amend‐ In the Ohio Senate, however, this ment put some much‐needed teeth bill died in committee after an into the civil rights law, and the amendment was added to the cases following its passage demon‐ bill to prohibit race and color strated the effectiveness of these en‐ discrimination in restaurants hanced redress and penalty clauses. and barbershops. As many ob­ More than two decades after the served, an increase in the penal­ passage of The Smith Amendment, a ties under the civil rights law at new effort was made to address the the expense of not including res­ other noted deficiency in the civil taurants and barbershops rights law: the failure to specifically (which were covered under the enumerate and define in the statute current version of the law) all of the places of public accommo‐ would be a step backward, not dations and amusement which were forward. intended to be brought with the meaning and spirit of the law. The The impact of this amendment on principal aim of this effort was to the effectiveness of the civil rights prevent the courts of the state from law could not be overstated. In a invoking the rule expressio unerious exclusio alterious—the rule that the In Fowler v. Benner, however, a case expression of one thing in a statute decided the very same year, a com‐ means the exclusion of other pletely different conclusion was things—which had been done to the reached regarding the law’s applica‐ detriment of the victim of discrimi‐ tion to an ice cream parlor, a very nation. similar type of establishment. A place of public accommodation, the Over the next several decades, the court explained, is generally a resort courts varied greatly on whether or where those who frequented it re‐ not a wide variety of establishments mained more or less at ease and were covered as “places of public ac‐ comfort for some considerable commodation,” and consequently length of time. An ice cream parlor, subject to the law’s prohibitions where people go to relax and enjoy against race and color discrimina‐ different types of refreshments, fits tion. In the case of Duewell v. Foer­ squarely within this definition and ester, for example, the court held was held to be a place of public ac‐ that a soda fountain was not a place commodation. of public accommodation. A soda fountain, the court reasoned—or for In one very peculiar case, that matter, a candy shop, dry goods wherein an African American store or hardware—is not analogous plaintiff alleged that a drug store to hotels, public conveyances or refused to sell her a glass of soda other establishments specifically set water because of her color, the forth in the civil rights law—hotels, court declared the civil rights public conveyances, restaurants and law unconstitutional. He openly barbershops. The court’s conclusion reasoned that the law was was unequivocal: “A proprietor of [a passed “solely to hold the colored soda fountain] has the absolute right vote,” and that the Ohio General to decline to sell to white, black, Ger‐ Assembly never intended the law man, Irish, Catholic or Protestant, or to be enforced. any class of persons which he may choose to decline to serve, without Other cases reached equally incom‐ giving rise to any right of action.” patible conclusions. While on the one hand drug stores, movie thea‐ three months ters, dancing pavilions, golf courses In 1883, the year before the passage and swimming pools were deemed of the civil rights law, this law, to be places of public accommoda‐ known as a “visible admixture” law, tion, retail clothing stores, places was deemed constitutional and not a where intoxicating liquors are sold, denial of equal protection of laws and the offices of doctors, dentists because it applied to both White and and lawyers were deemed not to be African American persons alike. places of public accommodation. It Ohio v. Bailey. This visible admixture would be more than forty years be‐ law was first enacted by the Ohio fore the Ohio General Assembly General Assembly in 1861. It was re would take the action necessary to ‐enacted in 1873, in the revision and undo the many artificial and restric‐ consolidation of the general statutes tive interpretations of the civil rights of Ohio, and retained in the com‐ law. plete revision of the general statutes During this time period in Ohio, it of Ohio in 1880. was illegal for persons of different Of perhaps greater irony, the very races to be married. The law made it same month that the first civil rights a crime for a “person of pure white law was enacted, an African Ameri‐ blood” to “intermarry[y] or have il‐ can citizen was fined one hundred licit carnal intercourse with any Ne‐ dollars and sentenced to two gro or person having a distinct and months of hard labor at a work‐ visible admixture of African blood,” house in Toledo for violating the or for “any Negro or person having a state law prohibiting intermarriage visible and distinct admixture of Af‐ between persons of different races. rican blood” to “intermarry[y] or So, at a time when an African Ameri‐ have illicit carnal intercourse with can could not be denied service at a any person of pure white blood.” restaurant on the basis of race or The penalty for intermarriage or il‐ color, he or she could still be denied licit carnal intercourse was a fine of marital relations on the very same not more than one hundred dollars basis. or imprisonment for no more than In the early 1920s, the Ku Klux Klan plained during one of many hearings promoted the adoption of a law that held on the legislation, one senator would prohibit ministers from mar‐ stated that it was “outrageous to dis‐ rying a white person and a person of criminate against persons of color,” any other race, and to impose a fine and that “all honorable citizens and imprisonment upon a minister should be treated alike.” who violated this law. While a bill Under this law, all life insurance was introduced in the Ohio House of companies were required to insure Representatives in 1925, the legisla‐ whoever applies, regardless of race tion was opposed by civil rights or‐ or color, upon the same terms, so ganizations and other similar groups long as the applicant conformed to across the state and ultimately died the general requirements of the in committee. company. Specifically, it was unlaw‐ During this same time period, how‐ ful for any life insurance company to ever, discrimination in places of pub‐ discriminate on the basis of race or lic accommodation was not the only color as to the premiums or rates area of racial discrimination calling charged for life insurance policies. It out for strong governmental action. was likewise unlawful to require a In 1889, a law was enacted prohibit‐ higher premium with respect to per‐ ing discrimination in the sale of life sons of the same age, sex and gen‐ insurance. Introduced as House Bill eral health conditions, or to make or No. 313 by the Honorable Jere A. require any rebate upon the sum to Brown, an African American Repre‐ be paid on the policy in the case of sentative from Cuyahoga County, this death, on the basis of race. legislation was aimed at preventing If a company refused a person’s ap‐ racial discrimination by life insur‐ plication for life insurance, then the ance companies. company was required to provided It was widely recognized at the time that person with a certificate of an that life insurance companies examining physician stating that the charged equally across all classes of application was denied solely upon persons, but frequently failed to pay the ground the applicant’s general equally in the case of death. As ex‐ health condition. The penalty for violating this law was a fine of not Another issue raising its head was less than One Hundred Dollars nor that of separate schools for African more than Two Thousand Dollars. American children. In his annual message to the Ohio General Assem‐ The beneficial effects of this law bly in 1885, and after passage of the were apparent almost immediately initial civil rights legislation the pre‐ following its enactment, as several vious year, Governor George Hoadly families who had shortly thereafter described the maintenance of sepa‐ lost children by death received the rate colored schools as one of the re‐ full amount due on life insurance maining traces of color prejudice to policies that previous paid less than be “obliterated from the statutes of the full amount (i.e., the amount re‐ Ohio.” While recognizing the quality ceived by White policyholders). As of some colored schools and com‐ described by advocates and in some mitment of the teachers at those media, the intent of this law—like its schools to the education of African predecessor the public accommoda‐ American children, he made clear tions law—was simply to place Afri‐ that these schools, in general, are in‐ can American citizens on the same ferior to White and mixed schools: footing as their fellow White Citi‐ zens. Not only are the opportunities thus afforded inferior to these which white children profit, but they are furnished to a race long deprived, and thus more in need of education. Col­ ored children are forced to travel long distances, often, of course, in unseasonable weather, while the duty of the State to furnish to all alike, ir­ respective of social rank or color, the same fair start and

Student at segregated school equal chance in the race of life, circa 1890. is neglected. It will be your same reason. Besides, high pleasing to remedy this evil. school privileges are seldom of­ fered in a separate school. One prominent case occurred only a few years earlier in 1883 when an The following year, a bill was intro‐ African American student, Tilford duced in the Ohio House of Repre‐ Davis, Jr., was denied admittance to sentatives to repeal the law permit‐ the local high school in . He had ting separate schools for African completed all of his courses in the American children. (Of equal impor‐ ward schools, but no arrangement tance, this same bill sought to abol‐ had been made for African American ish the penalty for intermarriage be‐ children to take higher level courses. tween persons of different races and Initially refused by the teachers at to repeal of the “visible admixture the high school, his appeal to the su‐ law,” which prohibited persons from perintendant was likewise refused, voting who had a mixture of African who explained that no orders had American blood or who appeared to been received by the school board be of African descent.) This pro‐ “admitting colored pupils.” As ob‐ posed legislation, however, was de‐ served in one commentary of the feated. time: Along with other elected officials And yet there are a few numb­ and community advocates, Governor skulls left who are in favor of Hoadly continued his efforts to re‐ separate schools. The facilities peal the law permitting separate are never quite so good for edu­ schools, which he described as both cating colored children as for wrong and oppressive. Separate white. The teachers may be as schools, he maintained, were tanta‐ proficient and the appointments mount to “the condemnation of col‐ as good in the way of buildings ored children, without accusation or and apparatus, but the build­ trial, to the punishment of compul‐ ings are farther apart, which sory non‐association in the common compels the children to walk schools with white children, to edu‐ farther to get to school, and the cation often inferior, and in places grading more deficient for the inconveniently remote from the resi‐ dences of their parents.” dren of all races sit in the same school rooms, but rather those places in the state where they do Perhaps one of the kindest com­ not. pliments paid to Governor Hoadly came from The Cleveland Gazette, which had this to say about him:

“Governor Hoadly is called a crank in politics because of his strong and open advocacy of Civil Rights for the Negro. Would that there were more such cranks active in the politics of this country. We need them.”

In one particularly noteworthy speech, Governor Hoadly described Govenor George Hoadly: Served one term as gove- the particularly devastating impact nor of Ohio from 1884-1886 of separate schools on African American children. “This is a badge In a commentary appearing in The of servitude,” he stated, “having the Cleveland Gazette during this time effect to degrade, and keenly felt by period, foreshadowing the lessons of many most worthy colored people, the great school desegregation case as in effect stamping them as unwor‐ of Brown v. Board of Education, the thy of equal privileges.” While rec‐ “evil” of separate schools referenced ognizing that much prejudice still by Governor Hoadly in his annual existed against mixed schools, he address and other speeches was put pointed out that this feeling was into clear perspective: most fervently found not where chil‐ One of the greatest objections throughout the state continued to to a separate school is that it practice racial segregation, either di‐ inculcates a vicious principle. It rectly or indirectly. One example, oc‐ teaches the black child that he curred the same year that the sepa‐ is inferior to the white, for if he rate colored schools were abolished, were endowed by the Creator when colored students in the then with the same capabilities, the Village of Yellow Springs were re‐ separate schools would not be quired to walk past a public school needed. The black and white located less than a quarter mile from children see this themselves. their homes to attend a separate school located at the edge of the vil‐ There is no natural hatred be­ lage. Many decades would pass be‐ tween them. The prejudices fore separate schools were abol‐ which are the result of slavery ished both in theory and in practice. are taught by the parents, and by the fact of the existence of In the decades that followed the en‐ separate schools. If the children actment of Ohio’s first Civil Rights of both races were taught in Law, several issues highlighted the the same school room, the bit­ continued problem of racial dis‐ terness of feeling now existing crimination in multiple areas would soon pass away. If sepa­ throughout the state. Perhaps the rate schools are unjust and most explosive was the outrage and wrong in their tendencies, it is controversy surrounding the film for the best interests of both “The Birth of a Nation.” races that they be abolished at Initially, the Ohio Board of Motion once. The question must be met Picture Censors rejected the film in some day. Why not now? its entirety (disapproving even an The question was met only a few edited version), explaining that the years later in 1887 when separate film “strongly tends to arouse hatred colored schools were abolished in and prejudice among the coming Ohio. generation against a race that is liv‐ ing in our midst.” This board also Nonetheless, many school districts concluded that the film “represented the Ku Klux Klan in such a manner health” if was not elected. Shortly that their conduct would be ap‐ after the inauguration of Governor plauded,” and that the film— Cox, the Ohio Board of Motion Pic‐ ture Censors approved the film, issu‐ . . . tends to justify that organi­ ing a certificate of censorship to the zation in capturing the Negores effect that the film was of a moral, and, as masked viglinace com­ educational and harmless character. mittees, trying them at night, convicting them of supposed An effort in Cleveland to prevent ex‐ ourtrages, ececuting them and hibition of the film on the grounds placing their bodies at the that it was calculated to and had a doors of state officials who tendency to excite and create a sympathized with their cause . . . [and that] present[ing] scenes of this character in a manner which to the on looker seems to be justified cannot fail to be harmful.

The owners of this film brought legal action, but the decision of the Board of Motion Picture Censors was up‐ held by the Ohio Supreme Court.

The film later became a political is‐ sue in the gubernatorial election of “Birth of a Nation” still 1916. Then Governor Willis op‐ posed exhibition of “The Birth of a breach of the peace was unsuccess‐ Nation,” and it was not exhibited ful. The decision issued in that case, while he was governor. Those who Epoch Producing Corp. v. Harry Davis, supported exhibition of this film Mayor of Cleveland, while noting the took concerted steps to defeat Willis, numerous biases and factual fabrica‐ some openly declaring that the tions of the film, noted more so the movie “would be given a clean bill of many remarkable successes and ad‐ vances of African American citizens: Ultimately, after the United States’ entry into World War I, Governor [F]ifty odd years of freedom, Cox requested that the film be taken schools and changed social en­ out of service, explaining that the vironment have wrought won­ film was “dangerous during war.” ders for this people. We no find This, not surprisingly, led many to them prominent in agricul­ question why the film was not tural, mercantile and industrial equally dangerous during times of pursuits. In all the professions, peace. they have challenged the su­ premacy of the European and Toward the midway point of the his descendants and are hold­ twentieth century, the cause of equal ing their own. Races who boast employment began to gain momen‐ their civilization extends back tum as a civil rights issue. In 1944, to the time man emerged from the first fair employment practices the shadows of barbarism meet bill was introduced in the Ohio the colored man, only recently House of Representatives, but was emancipated, in competition in defeated. all the avenues of trade, com­ merce, literature and social life, and find him a competitor wor­ thy of admiration and respect.

In the end, the judge could not reach the conclusion that the film would create a breach of the peace for a simple, yet poignant, reason: “To ad‐ mit that this photo‐play tends to April 1919, the 372nd Infantry Regiment provoke a breach of the peace is to of the 93rd Infantry Division marching on High Street in Columbus. The regi- confess that citizens of African de‐ ment was Ohio's African American unit scent are not law‐abiding citizens. in World War I. This I am not willing to admit, as it This bill, it is worth noting, was a bi‐ would be an uncalled‐for slander partisan effort, cosponsored by Rep‐ upon these citizens.” resentative Howard M. Metzenbaum the Consumers’ League of Ohio, and of Cleveland and Represenative state councils of the American Fed‐ David D. Turpeau of Cincinnati. eration of Labor and the Congress of Industrial Organizations. The mis‐ sion of the commission was to or‐ ganize support for, and lobby in sup‐ port of, a fair employment practices law in Ohio. It was led by Theodore M. Berry, a lawyer and Cincinnati NAACP official, and other African American activists.

The Commission for Fair Employ‐ ment Practices Legislation con‐ ducted its most intensive campaign in 1948, lobbying both political par‐ ties to adopt fair employment planks in their platforms. Senator Howard M. Metzenbaum: During U.S. Senator Howard Met- Ohio NAACP pamphlet supporting legislation to zenbaum’s tenure in prohibit segregation. the Ohio General Assembly he was a staunch supporter of The following year, 1945, the Ohio fair employment practices legislation. Commission for Fair Employment He later served on the Governor's Advi- Practices Legislation was formed. sory Commission on This commission was composed of Civil Rights twenty‐four local councils from In 1949, the commission drafted a across the state and was supported bill not only establishing a fair em‐ by the National Urban League, sev‐ ployment practices law, but also lay‐ eral brances of the NAACP, the Ohio ing the statutory framework for a Pastors’ Council, the Anti‐ strong administrative agency em‐ Defamation League of B’nai B’rith, powered to compel compliance and levy fines and penalties.

The bill passed the Ohio House of Representatives, but quickly became bogged down in the Ohio Senate, with opposition testimony that a powerful administrative agency would be detrimental to personal freedom. Supporters brought in Thurgood Marshall from the NAACP to testify, but despite his thoughtful and powerful testimony, the Ohio Senate voted down the legislation.

Thereafter, up until 1959, over thirty fair employment practices bills were introduced in the Ohio General As‐ sembly. Each bill, however, was de‐ feated, largely due to a strong lobby‐ ing effort against the legislation by the American Council of Christian Churches, the Ohio Bankers’ Asso‐ ciation, the Ohio Chamber of Com‐ merce and the Ohio Manufacturers’ Association.

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THE ADVISORY COMMISSION ON CIVIL RIGHTS AND THE DAWN OF A NEW ERA OF ENFORCEMENT IN OHIO

“This Commission believes a stable, healthy society and sound economy requires the greatest possible use of all manpower potential. We further believe that progress in the field of civil rights is fundamentally a job of education, enlightenment, and influencing our neighbors to understand the many facets of this subject. Therefore, we recommend that the State of Ohio be concerned with the problem of civil rights on a continuing basis through the establishment of a State Civil Rights Commission.”

Charles Y. Lazarus, Chairman Report of The Governor’s Advisory Commission on Civil Rights, 1958 On April 25, 1958, Governor C. Wil‐ At this meeting, Governor O’Neill liam O’Neill appointed a statewide emphasized that it was his desire Governor’s Advisory Commission on and purpose to “inaugurate and im‐ Civil Rights. Citizens from all parts plement a constructive, long range of the state—representing business, program in Ohio to insure all citi‐ education, government, industry, la‐ zens of the state their equitable and bor, and social welfare—were in‐ full enjoyment of the civil rights pro‐ vited to meet at the Governor’s Of‐ vided by the constitution.” In fur‐ fice in Columbus for the first meet‐ therance of this purpose, he in‐ ing of the Commission. Charles Y. structed the Commission to avoid Lazarus of Columbus was appointed involvement in anything that might as Chairman, and Reverend Hugh E. be wrongly interpreted as a political Dunn of Cleveland, John L. Feudner issue. of Akron, and Anthony Haswell of Governor O’Neill’s recommendation Dayton were appointed as Vice to the Commission was that the body Chairmen. Donald Beatty and Ches‐ conduct studies and obtain factual ter J. Gray of the Ohio Bureau of Un‐ field information in all of the princi‐ employment Compensation were ap‐ pal categories wherein civil rights pointed as staff consultants. are involved. Specifically, his com‐ ments referenced employment, housing, education and places of public accommodations. Still, he made clear that it was not his intent or desire to limit the work of the Commission, or to focus on any sin‐ gle area or problem. Instead, he urged the Commission to embrace a broad, constructive and long range approach to the issue of civil rights, to concentrate on the development of a sound, constructive program Charles Y. Lazarus served as Chairman of the Governor’s Advisory Commission based upon research and field stud‐ on Civil Rights. ies, and to work for and encourage ployment, to consider its findings, lasting results as opposed to current and then to make recommendations headlines. to the Governor on the matter of civil rights in relation to employ‐ As a final matter, Governor O’Neill ment. Thereafter, the Commission requested a report on the Commis‐ agreed, it would move on to research sion’s work prior to the next legisla‐ and study the other areas identified tive session, and that any recom‐ by the Governor. mendations formulated by the Com‐ mission based upon its studies, re‐ search, interviews, regional meet‐ ings and conferences be provided along with its report. It is worth noting that only a few months after establishing the Advisory Commis‐ sion, Governor O’Neill issued an ex‐ ecutive order directing the Ohio State Employment Service not to ac‐ cept discriminatory requests for em‐ ployment.

As one of its first acts, the Advisory Commission—in discussing the Governor C. William O'Neill: Govenor whole field of civil rights— O’Neill served one, two year term as concluded that the problem was too Governor from 1957-1959. broad and had too many facets to be It was widely understood that mi‐ tackled all at one time, and that it nority groups were disadvantaged in should be divided into its major opportunities for vocational training component parts as outlined by the and employment for reasons of race, Governor: employment, housing, religion and national origin. In or‐ education and places of public ac‐ der to make sound and constructive commodation. Consequently, the recommendations to the Governor, Commission decided to begin its re‐ the Commission needed accurate search and study in the area of em‐ and reliable information on which to base its recommendations. The Advisory Commission’s work included a thorough examination Under the direction of Dr. Frank Si‐ of a wide range of data and infor­ monetti, Head of the Department of mation, including: Industrial Management of the Uni‐ versity of Akron, a research staff was ♦data and information collected engaged to perform the research for to provide an empirical measure the initial study on employment and of the degree of employment dis­ a research model was developed. As crimination currently in exis­ a business researcher, the Advisory tence, Commission was confident that Dr. Simonetti would use an objective ♦data and information gathered analytical approach, and present concerning certain factors that facts, data and information in an un‐ affect employment practices, biased manner. He and his research such as inadequate vocational staff, moreover, recognized that vari‐ guidance, lack of training pro­ ous points of view, opinions and ra‐ tionalizations would be presented in grams, lack of vocational schools, this type of study since human union seniority rules, placement thought, feeling and emotion are all services and restrictive appren­ part of the problem of discrimina‐ ticeship rules, and tion. ♦data and information collected The overall purpose of the study on regarding the existence of avail­ employment was to obtain data and able training and employment information in order to evaluate and opportunities for minority group measure discriminatory employ‐ members in which they are not ment and personnel practices to‐ participating. ward minority groups. The scope of the study included a variety of fac‐ tors to assist in its completion. Due to the limited amount of time to

complete the study, it was not possi‐ ble to conduct original research. tacted, and from whom data, infor‐ The Advisory Commission, conse‐ mation, evaluations and opinions quently, decided to utilize existing was obtained, included public and sources of facts, information and private educators, labor union offi‐ opinion throughout the state, and cials, and the heads of state agencies that doing so would be of invaluable (regarding their own employment aid for such a complex study in a and personnel practices as well as state with a dynamic industrial soci‐ their opinion and judgment). Per‐ ety. The Commission utilized many haps the most important source of sources and agencies that were in‐ data was the Ohio State Employment volved in different areas of interest Service, which provided a wealth of to the study, and these sources pro‐ useful information based upon its vided a vast amount of data which placement and unemployment com‐ was used and included. pensation programs.

In addition to relying on existing As noted by the Advisory Commis‐ sources of facts and information, the sion, one encouraging sign high‐ Commission also held one‐day con‐ lighted by the study itself was the ference in each of nine cities at high degree of friendliness and co‐ which a number of the community’s operation demonstrated by nearly leaders and informed persons were all of the sources contacted by the invited to present papers and to dis‐ research staff. With only rare in‐ cuss the subject with individual stances of hostility and unwilling‐ commissioners. These conferences ness to discuss the subject of em‐ also included employers, whose ployment discrimination or provide point‐of‐view the Commission information, nearly all employers pointed out was necessary for the discussed their situations openly study. Indeed, the Commission con‐ and frankly (even though in many ducted one hundred unstructured cases they were not able to provide interviews with executives and lead‐ detailed and accurate information ers from various business industries because they did not keep their em‐ and activities throughout the state. ployment data on a racial or reli‐ gious basis). Other groups and interests con‐ In evaluating the data and informa‐ Employers, in contrast, provided ac‐ tion provided by various sources, curate and detailed data and infor‐ the Advisory Commission had to as‐ mation for some occupations but sess the reliability of each of the only general data and information sources. Sometimes, the informa‐ for other occupations. When avail‐ tion was highly precise and recent, able, the data and information con‐ and sometimes the data was precise cerned racial group members, and but not current. Frequently, how‐ nearly all employers said they could ever, the information was provided not determine the numbers of vari‐ in the context of informed opinion ous religious groups in various occu‐ rather than fact (as with the opin‐ pations in their businesses. Like‐ ions of informed sources in several wise, labor unions did not provide prominent minority group organiza‐ detailed and accurate data and infor‐ tions). mation because they did not keep membership information on a racial The data and information provided or religious basis, so their informa‐ by the Ohio State Employment Ser‐ tion and data was provided in a de‐ vice, for example, was deemed scriptive manner or in rounded highly reliable and accorded signifi‐ numbers usually indicated to be esti‐ cant weight. The data and informa‐ mates. tion provided by public and private educational institutions was also Still, the researchers were able to considered highly reliable because verify the data and information pro‐ these institutions generally collected vided by cross checking the informa‐ enrollment data on the basis of race tion obtained. Where, for example, and religion. Similarly, the informa‐ the Urban League provided informa‐ tion and data received from social tion about an employer, that infor‐ agencies working with minority mation could be verified by contact‐ groups was considered fairly reliable ing the employer, by contacting the because it was based upon those Minority Groups Services in the Ohio agencies’ own files and records used State Employment Service in that for referral and placement of minor‐ city, or by contacting the labor union ity group members. involved with that employer. Throughout the study, the research‐ those agencies and offices employed ers strived for impartiality, obtaining African Americans in a wide variety facts, information, judgments and of occupations, as well as in profes‐ opinions which would lead to reli‐ sional and supervisory positions. able conclusions based upon the in‐ Still, there were complaints that formation collected, which in turn some state agencies and offices did would lead to the formulation of not hire African Americans in cer‐ supportable recommendations for tain categories of occupations. One future action. Overall, the study con‐ considerable complaint was that the cluded that minority groups had Liquor Department did not place Af‐ made some small gains in a few oc‐ rican American clerks or store man‐ cupations in certain areas of em‐ agers in white or predominantly ployment, but that these groups— white neighborhoods, while another particularly African Americans— was that the Ohio Highway Patrol faced substantial obstacles and re‐ did not have African American pa‐ sistance in their efforts to secure trolmen. One overriding complaint equal employment opportunities. was that African Americans were The federal government agencies employed in state agencies in techni‐ and offices in the state, for example, cal, professional and supervisory po‐ were identified as the major source sitions, but they were not employed of employment for African Ameri‐ in policy making positions. cans in other than traditional jobs, Some of the city governments of‐ with many sources stating that op‐ fered considerable job opportunities portunities for African Americans to in clerical and professional positions obtain other than traditional jobs for African Americans. There were, would be greatly limited if not for however, complaints that African these federal agencies. Americans were not hired by certain The State of Ohio agencies and of‐ departments in city government, fices likewise constituted an impor‐ and were not hired in certain occu‐ tant source of clerical, technical and pations. professional employment for African Overall, federal, state and local gov‐ Americans in the state. Many of ernment agencies and offices made satisfaction amongst the African available desirable job opportunities American community and its social for African Americans, and upgrad‐ agencies that opportunities for up‐ ing and job promotion possibilities grades and promotions at this utility were generally deemed fair. Still, were fair. Similarly, another of the while a number of African American major utilities had begun a process supervisors were employed in gov‐ of slow integration in a few occupa‐ ernment agencies and facilities, tions, upgrading African Americans there was still substantial feeling from traditional jobs to skilled jobs that in none of these agencies were through training programs, and hir‐ African Americans employed in high ing some African Americans in pro‐ ‐level or policy making positions. fessional capacities in the utilities field. Only one of the major utilities The findings were similar for certain hired few African Americans and religious and nationality groups, clung to the belief that African with many members employed in Americans were not interested in the same agencies and offices, as working in the industry. well as given fair opportunities for upgrades and job promotion. Nota‐ The results were far more troubling bly, these government agencies and in other private sectors of employ‐ facilities reported that there was lit‐ ment. The manufacturing industry, tle difficulty between employees on for example, was viewed as an im‐ the basis of race or religion. portant area for the African Ameri‐ can job placement, given the tremen‐ In other areas, however, the study dous number of industrial and concluded that employment of Afri‐ manufacturing establishments can Americans varied greatly. In the throughout Ohio. Still, the employ‐ field of utilities, for example, it was ment of African Americans in the found that one of the three major manufacturing industry followed utilities in the state had developed a certain identifiable patterns. broad program of employment of Af‐ rican Americans, and they are em‐ While the large manufacturing ployed in a wide variety of jobs at plants employed African Americans this major utility. There was general in various production departments and in a number of semi‐skilled lev‐ mined these stereotypical beliefs. els, there were few African Ameri‐ One of the frequent complaints re‐ cans at these plants employed in lated to employment in the manufac‐ skilled positions, and in some in‐ turing field was the refusal of unions stances none. The most common ex‐ to admit African Americans, their planation for the absence of African failure to obtain plant‐wide seniority Americans in skilled positions was so that African Americans could lack of seniority. Some employers transfer and upgrade throughout contended that African Americans production departments, and their were not interested in undertaking failure to process the grievances of long periods of training, but the fact African American members. It was that African Americans had been up‐ found, however, that the larger un‐ graded to skilled jobs at manufactur‐ ions had recently removed facially ing plants in different parts of the discriminatory clauses in their by‐ state undermined this contention. laws, and that the exclusion of Afri‐ In contrast, few African Americans can Americans from local chapters were employed at the smaller manu‐ was gradually decreasing. facturing plants across the state. Finally, just as differences emerged Those that did employ African within large and small manufactur‐ Americans, moreover, assigned them ing plants, similar differences to jobs as porters, janitors and emerged amongst certain industries hourly laborers, not even employing with respect to the employment of them in unskilled production jobs. African Americans in other than tra‐ Some employers at the smaller ditional jobs. This was especially manufacturing plants thought that true of the machinery manufactur‐ employing African Americans in pro‐ ing industry where considerable duction jobs would cause difficulties numbers of skilled workers were with other employees or that African employed and the plants were not Americans would not be good em‐ usually very large. ployees, but again, experiences at other manufacturing plants that had In the banking industry, the study hired African Americans under‐ concluded that banks hired African Americans, but only in traditional employed except in the largest or‐ jobs. The African Americans that ganizations, and then usually in tra‐ were employed in nontraditional ditional jobs. jobs, moreover, held those jobs not Two notable exceptions to this pat‐ requiring public contact. Several tern found by the Advisory Commis‐ bank executives admitted that they sion were employment in hospitals believed that the nature of their and in the area of education. Hospi‐ business precluded the employment tals had made considerable pro‐ of African Americans. Some even gress, employing African Americans stated that they believed that their as nurses and nurses’ aides in large African American customers pre‐ numbers. Moreover, many hospitals ferred white tellers, even in pre‐ employed African Americans as dominately African American technicians in x‐ray and other labo‐ neighborhoods. ratory departments, and some Afri‐ The results were similar in the retail can Americans were employed on trade field, where few African professional staff. Overall, hospitals Americans were found to be em‐ indicated a sincere interest in hiring ployed as sales clerks, and then only more African Americans as nurses in the major department stores. and technicians. Again, most African Americans em‐ The Advisory Commission further ployed in retail trade held tradi‐ found that some progress had been tional jobs. The same was true of su‐ made in each of Ohio’s major cities permarkets, where the national with respect to the employment of chain supermarkets hired a few Afri‐ African Americans as teachers, and can Americans, but primarily at su‐ that most African American teachers permarkets located in mixed or pre‐ were placed in mixed or predomi‐ dominately African American nantly white schools. There was, neighborhoods. however, a general complaint in the Other industries—transportation, African American community that office employment, professional and these teachers were placed in technical employment—found simi‐ schools that are predominately Afri‐ lar patterns: few African Americans can American or have a large pro‐ portion of African American stu‐ on the basis of qualifications and dents, that they are usually placed in merit without regard to race. More‐ elementary schools as opposed to over, even at those typically large high schools, and that they face great employers where hiring discrimina‐ difficulty in advancing to administra‐ tion is minimal, this was usually true tive positions, including school prin‐ only with respect to jobs requiring cipal. Similarly, it was widely felt little or no training, and which were that the suburban school systems generally viewed as the least desir‐ generally excluded African Ameri‐ able positions. cans from teaching positions. The Advisory Commission further Based upon these and other perti‐ concluded that the reasons offered nent findings made as part of its by many employers to explain or de‐ more than 8 months of study and fend their hiring practices and em‐ analysis, the Advisory Commission ployment patterns with respect to concluded that discrimination in African Americans and other minori‐ employment and personnel prac‐ ties were proven to be unjustified tices toward minority groups existed based upon the evidence and experi‐ in many firms, industries and areas ence of other employers in the same of employment throughout the state, or similar businesses or industries. although some employers had made These discriminatory hiring prac‐ progress and were continuing to tices, moreover, grew out of tradi‐ make progress in addressing dis‐ tional attitudes toward minority crimination against African Ameri‐ groups, coupled with a concept of can employees and job applicants. “their place.” It was clear that many top management executives and per‐ Despite the fact that most employers sonnel officials were basing employ‐ stated that they hired and promoted ment decisions on common stereo‐ on the basis of qualification and did types of racial and religious minori‐ not discriminate against any racial ties. or religious group, the Advisory Commission concluded that their With respect to those employers employment patterns give no evi‐ that hired African Americans in tra‐ dence of hiring and promoting solely ditional jobs, most felt that this was persuasive evidence that they did In order to address the findings and not discriminate in their employ‐ conclusions regarding discrimina‐ ment practices. Indeed, they usually tory employment practices in the gave the impression that hiring Afri‐ state, and to ensure for all citizens can American applicants for clerical, the full enjoyment of civil rights, the technical, supervisory and other Advisory Commission made the fol‐ nontraditional positions as part of a lowing recommendations: nondiscriminatory employment pol‐ 1. That an Ohio Civil Rights icy never occurred to them. Commission be established Notably, where African Americans by legislation. had made progress in securing em‐ 2. That the Ohio Civil Rights ployment in nontraditional jobs or Commission develop and expanding opportunities in nontra‐ educational and informative ditional fields of employment, this program to eliminate dis­ crimination based on race, success was widely agreed to be due creed, color, or national ori­ to the efforts of the Minority Groups gin in all fields and all areas Services Department of the Ohio Bu‐ of civil rights. reau of Unemployment Compensa‐ 3. That the Ohio Civil Rights tion and the Urban League. Commission create such ad­ While noting that “the element of visory agencies and con­ malicious discrimination is not wide ciliatory councils, local, re­ gional or statewide, as in its ‐spread,” the Advisory Commission judgment will aid in effectu­ concluded that discriminatory hiring ating the purposes of these practices existed across the state, at recommendations. all levels. The progress that was oc‐ 4. That the Ohio Civil Rights curring with respect to the employ‐ Commission be empowered ment and placement of African to use effective enforcement American workers, moreover, was procedures in the field of occurring at a far slower pace than employment discrimination was justified or desirable, and there when other procedures were several areas of employment in prove ineffective. which no progress had been at all. Less than two months after the issu‐ These laws, moreover, provided pro‐ ance of the report of the Advisory tection against discriminatory em‐ Commission, Senate Bill 10—known ployment practices on the basis of as the Fair Employment Practices race, color, religion, national origin Commission Legislation—was intro‐ and ancestry for approximately 49% duced by Senator John Carney of of the population of the country, Youngstown and Senator Edward 25% of the non‐white population Whitmere of Canton. Despite oppo‐ and 82% of the Jewish population, in sition from those trade associations addition to a substantial number of and other organizations that had op‐ Spanish‐speaking Americans, and posed such legislation for more than persons deprived of equal economic a decade, Senate Bill 10 was quickly opportunity because of national ori‐ enacted by the ____ General Assem‐ gin. bly and became effective July 29, The various provisions of Chapter 1959. 4112 prohibited a wide spectrum of Upon its enactment, the Fair Em‐ practices in employment based upon ployment Practices Commission Leg‐ race, color, religion, national origin islation, codified in Chapter 4112 of or ancestry. Indeed, the sheer the Ohio Revised Code and setting breadth of its primary protection in forth the state’s laws against dis‐ employment was to be admired: crimination, was heralded as the It shall be an unlawful discrimi­ most advanced of any fair employ‐ natory practice . . . for any em­ ment law in effect at the time. With ployer, because of the race, color, the addition of Ohio’s civil rights religion, national origin or ances­ statute, fair employment practices try of any person, to discharge laws covered nearly all non‐ without just cause, to refuse to Southern industrial states—New hire, or otherwise to discriminate York, New Jersey, Massachusetts, against that person with respect Connecticut, New Mexico, Oregon, to hire, tenure, terms, conditions, Rhode Island, Washington, Michigan, or privileges of employment, or Minnesota, Pennsylvania, Colorado, any matter directly or indirectly Alaska, Wisconsin and California. related to employment. These prohibitions, moreover, ap‐ ment practices, however, was the plied not just to employers, but also creation of a state agency empow‐ to employment agencies, personnel ered to enforce these provisions and placement services, labor organiza‐ order appropriate relief to the vic‐ tions, and joint labor‐management tims of discrimination. Originally committees. Likewise, the law pro‐ known as the Fair Employment hibited aiding, abetting or coercing Practices Commission, the agency’s the doing of an unlawful discrimina‐ name was officially changed to the tory practice, preventing any person Ohio Civil Rights Commission in from complying with the law, or at‐ 1961. In addition to enforcement, tempting directly or indirectly to the newly created state agency was violate the law. The new law, in fact, directed to carry out a number of was so broad that it even applied to other important duties, and granted those seeking employment, prohibit‐ authority to study, advise, and issue ing them from advertising their race, statements regarding all civil rights color, religion, national origin or an‐ problems in the state. cestry. In its first year of operation, the Ohio In order to protect those who as‐ Civil Rights Commission sought to serted their right to be free from dis‐ establish the basic structure of its criminatory employment practices, a program by taking initial action on provision was included that prohib‐ each of its assigned statutory duties. ited any form of retaliation against a Mindful of its legislative mandate, person who filed a discrimination some progress was made in all ar‐ charge or otherwise opposed a dis‐ eas, even though throughout most of criminatory employment practice. its first year, the Commission was Without this protection, of course, comprised of five commissioners, an many employees would not com‐ executive director and three admin‐ plain about discriminatory employ‐ istrative staff members. With a total ment practices for fear of losing operating budget of $277,334 for the their employment altogether. biennium, the Commission estab‐ lished a principal office in Columbus, Perhaps most indicative of the and regional offices in Cleveland, state’s commitment to fair employ‐ Cincinnati, Bellaire and Toledo. The forcement alone was not adequate to agency also hired an educational di‐ ensure fair employment opportunity. rector and a survey and research di‐ For this reason, the Commission rector. commenced a concentrated effort to inform employers and labor organi‐ The agency’s most high visible func‐ zations in various industries of the tion—receiving, investigating and requirements of the new civil rights passing upon charges of discrimina‐ law and their obligations. As part of tory employment practices— this effort, the Commission prepared resulted in the filing of 160 charges a summary of the law and distrib‐ in the first year. Of these, 78 cases uted that summary to over 160,000 proceeded to investigation, most of employers, labor organizations and which were still pending investiga‐ employment agencies across the tion at the end of that first year. state. Twelve cases were dismissed on the ground that there was no probable The Commission also launched an cause that a discriminatory practice education program in close coopera‐ had been committed, and ten cases tion with the Ohio Department of were conciliated. The cases investi‐ Education in that first year. In fur‐ gated in that first year ranged from a therance of this program, the Com‐ corner service station where the mission formed an Educators’ Advi‐ owner apologetically hired an Afri‐ sory Committee, composed of can American applicant to large em‐ twenty‐seven prominent educa‐ ployers and labor organizations in‐ tors—representing university pro‐ volving thousands of individuals. In‐ fessors, members of local boards of deed, one of the first cases filed in‐ education, superintendents, princi‐ volved an employer with over five pals and teachers at high school and thousand employees and fourteen primary levels, representatives of unions. private and parochial schools, and guidance and curriculum experts— While acutely aware of the impor‐ who volunteered their considerable tance of its investigative and reme‐ time and services. This advisory dial duties, the Commission recog‐ committee recommended a program nized early on that case‐by‐case en‐ directed at teacher education, guid‐ racially segregated living arrange‐ ance and training of students, and ments of the inmates. At Xenia, it as‐ school programs. sisted in the development of an in‐

Along the same lines, the Commis‐ sion made every effort to inform the citizens of Ohio about the new law and its meaning, though at the end of the first year many citizens re‐ mained unaware. Toward this end, the Commission issued numerous public service announcements that received wide‐spread publicity in the media. The Commission also met from time to time in various cit‐ ies of the state to permit residents to become more familiar with the agency’s activities, and the commis‐ sioners and staff delivered 137 speeches before groups and organi‐ Governor Michael V. DiSalle who served one, four year term as Governor from 1959-1963 zations throughout the state.

Under its responsibility to study the stitutional policy and plan of racial problems of discrimination in all desegregation for the white and Afri‐ fields of human relationships and can American children. The agency foster good will, the Commission, at also sent an observer to other inci‐ the request of Governor DiSalle, par‐ dents involving civil rights problems ticipated in questions of discrimina‐ that occurred within the state, in the tion that were raised concerning the belief that information collected Women’s Reformatory at Marysville could be used to settle differences or and the Soldiers and Sailors Orphan‐ as a basis for further study and legis‐ age at Xenia, with positive results in lative recommendations. both cases. At Marysville, the As part of its duty to survey and re‐ agency assisted in eliminating the search the existence and effect of der the jurisdiction of the agency. discrimination on the enjoyment of The Commission found that, despite civil rights, the Commission decided the existence of a public accommo‐ to study the problem of discrimina‐ dations law, discrimination in places tion in places of public accommoda‐ of public accommodation existed tion. This decision was largely throughout the state, and victims of based upon the fact that almost im‐ these discriminatory practices were mediately upon commencing opera‐ most often African Americans, dark tions, cases filed under the existing skin Puerto Ricans and Mexican public accommodations law were Americans. The practices ranged brought to the attention of the Com‐ from restrained or unfriendly accep‐ mission, accompanied by observa‐ tance to complete denials of service, tions and complaints that the intent and were accompanied by every‐ of that law was not being achieved. thing from antagonistic rebuffs to In addition, there were widespread physical assaults. The Commission reports of interracial tension caused further found that the discrimina‐ by picketing of restaurants for racial tion in places of public accommoda‐ discrimination in several major cit‐ tion was more widespread than ies in the state. available data indicated because of After conducting surveys and inter‐ unreported cases caused by either views, reviewing news accounts of lack of knowledge of—or more of‐ court suits filed under the existing ten, lack of confidence in—the exist‐ public accommodations law ing public accommodations law. (originally enacted in 1884), and Places of recreation evoked the larg‐ conducting a series of fact‐finding est number and the most fervent conferences throughout the state, complaints, with the place of public the Commission issued its report, accommodation most often at issue entitled “Discrimination in Public a roller skating rink. In one unusual Accommodations in Ohio.” In this case, a roller skating rink was made report, the Commission concluded available to African American pa‐ that a new public accommodations trons only two nights each week af‐ law was needed and should be un‐ ter 12:00 midnight. Similarly, sev‐ eral large commercial recreation ar‐ tion did not ordinarily involve high‐ eas in the state either admitted Afri‐ price hotels or restaurants located in can Americans on special days, re‐ big cities. Instead, most complaints fused their admission on certain centered on moderate‐ to low‐priced days, or restricted their patronage to hotels and restaurants located in the certain activities within the recrea‐ fringes of downtown areas or those tional area. located in areas of transition.

A large number of complaints were As for the public accommodations also made with respect to places law in effect at the time, the Com‐ providing personal services, such as mission concluded that the out‐ barber shops, health salons and hos‐ comes of cases varied by geography, pitals. Specifically, complaints often reflecting a bias by juries, pub‐ against hospitals alleged practices lic prosecutors, and police officers such as setting aside special rooms (in their role as witnesses) toward for African American patients, mov‐ the concept of equal treatment in ing African American patients to places of public accommodation. avoid mixing them with white pa‐ Consequently, the law was viewed as tients, or placing them in African an unwieldy, uncertain provision for American wards although their in‐ helping to assure citizens of their surance coverage warranted semi‐ rights. private accommodations. A particu‐ The Ohio Civil Rights Commission larly egregious example of discrimi‐ concluded that the law was out‐ nation was that experienced by an moded and ineffective in providing expectant mother who delivered her equality of access to public accom‐ baby in the corridor of a hospital be‐ modations and services for all re‐ cause the rooms designated for use gardless of race or color, and also by African Americans were occupied pointed out that the law does not while at the same time other rooms protect against discrimination on were vacant. the basis of religion, national origin The complaints against hotels and or ancestry. As its first public policy restaurants followed a similar pat‐ decision, the Commission recom‐ tern. The incidences of discrimina‐ mended the enactment of legislation with effective enforcement provi‐ gram, both regulatory and educa‐ sions and procedures in the area of tional, established hope, created in‐ public accommodations. centives, encouraged training and re ‐training, and significantly added to While the Commission undertook the available manpower supply of substantial work in its first twelve the state, all of which were vital to months, it was clear to all involved an expanding economy. that much important work remained to be done. It was equally clear, Still, the Ohio Civil Rights Commis‐ moreover, that none of the fears con‐ sion understood that discriminatory cerning the enactment of fair em‐ employment practices had far from ployment practices legislation mate‐ been eliminated and that the num‐ rialized. Across the state, members ber of charges filed—whether high of minority groups were working on or low—was not the sole index of jobs and in industries previously the extent to which employment dis‐ closed to them without disruption. crimination existed or how success‐ Moreover, there was not a single in‐ fully it was being addressed. There‐ stance where walkouts or tense fore, in addition to continuous ef‐ situations occurred as a result of de‐ forts in its regulatory and enforce‐ cisions taking a firm position in car‐ ment functions, the Commission be‐ rying out a nondiscriminatory em‐ lieved that the elimination of dis‐ ployment policy, as many opposed to criminatory employment practices the new law had predicted in their would ultimately result from new efforts to prevent its enactment. On and challenging educational pro‐ the contrary, the reports received by grams directed at traditional atti‐ the Commission expressed em‐ tudes and habits of men which sup‐ ployee cooperation and acceptance. port and further prejudice and dis‐ crimination. Likewise, there was not a single in‐ stance of a plant or employer depar‐ At the close of its first year, the Ohio ture from the state that was re‐ Civil Rights Commission found that ported as having been attributed to the acceptance of the new law and the existence of the new law. The its enforcement was generally favor‐ Commission concluded that its pro‐ able. No persons, including those who had been the subject of investi‐ gations, took the position that the law was wrong; on the contrary, it was generally conceded that the law was morally and legally right and proper, and the agency received co‐ operation—albeit in varying de‐ grees—from all citizens and from all groups.

* * * SURVEYING THE EXISTENCE OF DISCRIMINATION AND STRENGTHENING THE LEGISLATIVE MANDATE

“Crisis and tragedy have underscored the increasing need for effective enforcement of a public policy of non­ discrimination with a minimum of community divisiveness. The Commission’s position throughout its five years of existence has been and continues to be that its functions are, by their very nature, controversial but that the overriding consideration must be a strong commitment to and faithful execution of the anti­ discrimination laws of Ohio. It is our hope and belief that the beneficial results of these laws will speak for themselves.”

Dr. Arthur L. Peterson, Chairman, 1964 A Statewide Education its implications for educators, and Program the afternoon session focused on the role of educators in the In 1960, the Ohio Civil Rights Commission’s education programs. Commission began the new decade by commencing the first phase of the The second major phase of the agency’s education program, Commission’s education program developing and implementing a was the development and broad, statewide information implementation of pre‐service and program for educational leaders in‐service education resources for regarding the nature of the agency counselors working with minority and its functions. That year, the group youth. As part of this phase, Commission held its first statewide the agency published a professional education and civil rights manual, entitled “Counseling conferences, one at Kent State Minority Group Youth,” which was University and the other at Bowling distributed widely throughout the Green University. The purpose of state. these conferences was to increase Toward the end of that same year, understanding of the civil rights law the Commission convened a and its implications for schools. statewide civil rights conference in In terms of attendance, there were Columbus. Through a combination over 170 representatives attending of major addresses, panel the two conferences from 18 city, 13 discussions and workshops, the county, 20 local, and 7 exempted program of the conference explored village school systems. The the four major areas of civil rights— conferences were planned for school employment, education, housing and administrators and the majority of public accommodations. The the conferees were superintendents, keynote address, “Fair Employment executive heads and principals. The Legislation and Manpower conference programs were divided Utilization,” was given by Carl H. into two parts, with the morning Hagerman, Vice President of the session focused on the new law and Union Carbide Corporation, one of the nation’s largest corporations at the time and a major employer in its second survey, this one Ohio. examining the practices of Ohio college and university placement This first statewide civil rights offices with regard to job placement conference was attended by more of minority students. The purpose than three hundred people, of this survey—which included 41 representing management, labor, colleges and universities, including education, religion and civic tax supported, church supported, organizations, from forty‐nine cities. and privately supported—was to Of particular significance to the examine the experience, procedures, agency were sizable representation and practices of college and of employers, many of whom university placement offices in Ohio expressed their appreciation for a with regard to the civil rights law clear understanding of the anti‐ and to assist the agency in the discrimination law. development of an effective program for the elimination of unlawful discriminatory practices in the development of minority group students.

Of those placement offices surveyed, only one saw a need for a written policy statement to guide placement offices, faculty personnel and others

Ohio AFL­CIO Civil Rights Conference, who directly or indirectly participate Youngstown, Mahoning County, Ohio in in placement activities. This was 1961. troubling in light of the finding that minority student status materially A Survey of College and affected vocation counseling University Placement guidance services. Offices Many placement officials were unduly concerned about the In 1961, the Commission undertook possibility of sending applicants where they weren’t “wanted,” and nondiscriminatory practices, they were ready to ignore the law in carefully orient all persons involved order to avoid the unpleasantness of in placement activities and related sending all qualified applicants and services with regard to sound embarrassing employers who would nondiscriminatory employment then have to either meet their legal practices, and advise employers of responsibilities or do the unlawful instances of unlawful information screening themselves. requested on applications or during interviews (referring those failing to Indeed, the officials in co‐op correct violations to the agency for programs appeared more sensitive appropriate action). to the discriminatory desires of employers than the regular placement officials. This, however, “The government of Ohio has a was not surprising given that those concern in the equal treatment of same officials reported that nine out all persons in the state, and of ten cooperating firms were highly through its legislature and Gov­ ernor the people have deter­ discriminatory. Perhaps most mined this to be the state’s policy. troubling, however, was the finding An offense against the civil right that for all practical purposes, of an individual Ohioan is an of­ discriminatory job orders were still fense against the state.” being processed by placement offices. Albert J. Dillehay, Chairman, 1962 In order to bring the policies and practices of college and university placement offices into compliance The First Public Hearing with the anti‐discrimination law, the It was not until its third year of Commission recommended that operation that the Ohio Civil Rights each institution adopt a policy Commission held its first public statement for placement officials on hearing. On September 6, 1961 in equal opportunity and the law, the Montgomery County Court restrict its programs to those House, the Commission’s first employers adhering to hearing examiner, Roscoe L. Barrow, air, land, or water, theater, store, or called to order the first such other place for the sale of proceeding in Ohio’s history. The merchandise, or any other place of case, In re Lester Bass and the Van public accommodation or Cleve Hotel Company, involved a amusement, except for reasons musician hired to perform in a well‐ applicable alike to all persons.” known downtown hotel. The hotel management, not wanting an African American musician “The major emphasis of the performing in its public rooms, method embodied in the law is to requested that the entertainment educate, not to punish; to per­ suade, not to compel; and to con­ booking agency replace him with a ciliate, not to arbitrarily enforce.” white musician and this request was accommodated. Albert Dillehay, Chairman, 1962 Ultimately, the Commission found that the entertainment booking agency was an employment agency Though in fact the practice of and failed to refer the African discrimination in places of public American musician for performance accommodation had been unlawful at the hotel. The musician was for over 77 years, a survey awarded back wages in the amount conducted by the Commission of $180, plus legal interest. established that the intent of this law was widely ignored and through A New Public judicial construction, narrowly Accommodations Law interpreted.

In that same year, the 104th General The new public accommodations Assembly passed House Bill 918, law was designed to overcome the prohibiting discrimination against deficiencies of the original public persons because of their race, color, accommodations law by replacing religion, national origin or ancestry ineffective civil and criminal in any “inn, restaurant, eating house, proceedings with administrative barber shop, public conveyance, by investigation and enforcement under the jurisdiction of the Ohio Chapter 4112 were applicable to the Civil Rights Commission. The two administration and enforcement of principal amendments vesting nondiscrimination in places of jurisdiction in the Commission were public accommodation, with one the following: exception. The Commission’s authority for self‐initiated “Place of public investigation and issuance of accommodation” means any inn, complaints applied only to alleged restaurant, eating house, discriminatory employment barbershop, public conveyance practices, and not places of public by air, land, or water, theater, accommodation. store, or other place for the sale of merchandise, or any other Another Gubernatorial place of public accommodation Request for Assistance or amusement where the accommodation, advantages, In 1961, the Commission also acted facilities or privileges thereof upon another request referred to it are available to the public. under the executive authority of the Governor. This time, the request “[It shall be an unlawful was to examine allegations of discriminatory practice] For any housing segregation based upon proprietor or his employee, race involving the occupants of the keeper, or manager of a place of Ohio Soldiers and Sailors Home at public accommodation to deny Sandusky. The ensuing investigation to any person, except for reasons revealed that one cottage was used applicable alike to all persons solely to accommodate African regardless of race, color, American residents, while all of the religion, national origin, or other cottages were reserved for ancestry, the full enjoyment of only white residents. After the accommodations, discussions and conferences with advantages, facilities, or the Home’s superintendent, the privileges thereof.” situation was corrected and All other provisions of Revised Code thereafter all residents were accommodated on a non‐segregated comprehensive survey and report on basis. housing discrimination, entitled “Discrimination in Housing in Ohio.” A Survey on the Problem of In this report, the Commission Housing Discrimination concluded that the African American community in Ohio was not The third—and most permitted freedom of ingress to the comprehensive—survey undertaken overall housing market but, on the by the Ohio Civil Rights Commission contrary, is arbitrarily restricted to a was started in 1962. The objective segment of the market. Such factors of this survey was to determine the as income, personal preferences and extent and effect of the minority a host of other matters which enter group housing problem in Ohio, as into the acquisition of housing in the well as to describe and analyze the white community are overridden methods and practices which and subordinated by considerations deprive minority group persons in of race. Ohio of fair and equal housing choice. The Commission’s report contained substantial evidence to the effect To this end, the Commission held that the restrictions imposed on the fourteen public hearings in eleven African American community different cities throughout the state. emanated largely from such These hearings included members of institutional sources as real estate banking organizations, real estate brokers and lending institutions, boards, apartment owners’ rather than solely from the wishes of associations, home builders’ white owners. In as much as those associations, as well as community segments of the real estate industry agencies and organizations such as were licensed and regulated by the the NAACP, the Urban League, Jewish state, the question emerged as to Community Federations, and whether their existing power to community relations boards. discriminate constituted an example The following year, 1963, the Ohio of unequal protection of the laws. Civil Rights Commission issued a This philosophical and legal question was accompanied by the nationality, and religious groups, but many indicators of housing also upon testimony and evidence discrimination which were present offered by representatives of the real in all Ohio cities, namely estate and construction industries as overcrowding and racial imbalance well as lending institutions and in public schools, as well as the associations. potential stultification of community Based upon this report, the and civic morals. Commission sought the enactment of comprehensive fair housing legislation on the state level, contending that the need for such legislation was as imperative at that time as it had been anytime in the past. In just a short period of the time, the comprehensive fair Governor Rhodes with the Commissioners, 1964 housing legislation sought by the agency would be enacted. Ultimately, the Commission concluded that there existed a The Gegner Barbershop consistent pattern throughout Ohio Case whereby African Americans and other minority groups were denied In 1964, the constitutionality of the free choice in housing. The agency newly enacted public further found that patterns of accommodations law was upheld by exclusion, segregation and the Second District Court of Appeals discrimination constituted a major in Gegner v. Ohio Civil Rights component of the practices of the Commission, which reversed a trial housing and real estate business. court’s decision invalidating the law. This conclusion was based not only The case involved a barber who had upon the testimony and evidence of refused to cut the hair of an African more than 250 persons who American patron, alleging that he represented various racial, did not know how to do so. The Ohio Supreme Court accepted the case for review, but then dismissed In its decision, the state appellate the matter as moot because the court held that the new public barber shop had been sold and the accommodations law “does not new owner was providing full require him to develop new skills,” enjoyment to all persons, regardless but rather “merely provides that he of race or color. must not deny the services of his shop to any person because of a race.” The court further stated that the barber would “not be deprived of his property or the continued use of it, nor the practice of his profession, except by his own choice.” “Unless the order of the commission is enforced,” the court concluded, “the rights of other will be denied.” Protesters gather outside the Barbershop of Lewis Gegner in March 1964. Mr. Gegner he refused to cut the hair of African Ameri­ Surveying School can patrons and local civil rights advocates Personnel Practices had sought to integrate his barbershop for almost 15 years. In 1964, the Ohio Civil Rights Commission completed a survey of school personnel practices in Ohio’s “The Ohio Civil Rights Commission eight largest school systems— is a relatively young agency, but Akron, Canton, Cincinnati, Cleveland, the problems with which it deals Columbus, Dayton, Toledo and are old. The solution to these Youngstown. The agency believed problems has long been known that this survey was particularly but seldom applied.” warranted given the public schools Dr. Arthur L. Peterson, position as governmental agencies Chairman, 1964 as well as the substantial number of persons employed throughout Ohio by the public schools. The findings of this survey were schools. encouraging. Substantial progress, the survey’s participants agreed, had been made in the utilization of minority group talents in all areas of employment, and creative and imaginative programs were implemented to further improve the situation.

However, it was also found that problem areas still remained and would require further attention. Specifically, there was a need to develop a greater supply of African Civil rights workers on the Western College American secondary teachers, Campus in Oxford, Ohio in June 1964, dur­ ing the National Council of Churches Com­ counselors and administrators. mission on Religion and Race training pro­ Likewise, there was a need to gram. develop a willingness between white and African American teachers to Police, Crime and Civil teach where assigned according to Rights talent and need, rather than according to inclination based on the In 1965, the Commission convened a racial composition of the particular statewide meeting entitled “The school involved. School Police and Civil Rights Dialogue” in administrators, according to the Worthington. This meeting was survey, would need to pay special attended by over one hundred police attention to hiring, promotion and officers from across the state, and placement practices in order to included representatives of the state remedy the existing situation where highway patrol, as well as mayors an inordinate number of African and safety directors. One of the American teachers are assigned to presenters, speaking on crime and predominately African American race, described how statistics perpetuate myths and stereotypes and state courts relative to de facto about minority racial groups, and segregation, or “racial imbalance,” in fail to note the correlation of crime public schools. The Commission’s to income, education and housing, primary conclusion was that, while independent of race. the law was unsettled as to whether de facto segregation needed to be corrected, school authorities could “The establishment of human re­ nonetheless voluntarily take action lations commissions or boards by designed to foster racial integration many municipalities has done in the public schools across the much to ameliorate local prob­ state. lems that the Commission recog­ nized. The Commission has pro­ vided counsel and assistance in several such efforts. Hopefully, we may continue to progress toward the end when the need for such commissions shall have slipped into obsolescence.”

Hugo A. Sabato, Chairman, 1965

Racial Imbalance in the Public Schools

Perhaps the most significant project undertaken by the Commission that year, however, was the preparation Above: Northwest Education Advi­ and publication of its study entitled sory Committee, 1965; Below: North­ “Racial Imbalance in the Public east Education Advisory Committee, Schools: A Survey of Legal 1965. Developments.” This study focused upon the major decisions of federal The First Fair Housing Law neighborhood or school or a decrease in property values. The year 1965 also saw the further expansion of the state’s civil rights Financial institutions were also efforts with the passage of Senate covered by the law and were Bill 189, the Fair Housing Law, prohibited from refusing to lend enacted by the 106th Ohio General money or otherwise discriminate Assembly. This law made with regard to a real estate loan discrimination on the basis of race, because of the race, color, religion, color, religion, national origin or national origin or ancestry of a ancestry unlawful in the sale or prospective borrower. This rental of housing (with exceptions prohibition was applicable to any for the personal residence of the loan which relates to either owner of one‐ or two‐units commercial housing or a personal exempted). It included apartment residence. houses, public housing and There was, however, an exception residential building lots. for religious organizations and bona Real estate personnel were covered fide private or fraternal by the new fair housing law, which organizations. Nothing in the new included rentals and well as law prohibited these organizations purchases. The law made illegal a from giving preference to their wide array of practices, including members or making selections any inquiry into the race, color, calculated to promote the religious religion, national origin or ancestry principles or aims, purposes or of a prospective buyer, renter or fraternal principles for which they borrower, as well as inducing panic were established and maintained. selling or soliciting real estate The enactment of the Fair Housing listings by representing that racial Law was in large part due to the or ethnic changes are occurring in a efforts of Representative Carl Stokes neighborhood, or by representing of Cuyahoga County. Representative that such changes may lead to the Stokes traveled the state speaking future deterioration of a on the need for effective fair housing legislation. His first effort to pass fair discriminatory practices, found housing legislation was defeated. themselves more and more deeply However, as part of a revised entrenched in congested and strategy, Representative Stokes deteriorated neighborhoods, with introduced a tougher fair housing escape virtually impossible. bill to attract of the attention—and In addition, housing discrimination ire—of those opposed to the fair was viewed as contributing to a host housing bill, while a modified fair of other problems. For example, housing bill was introduced at the housing discrimination hampered same time. The modified bill, which school integration efforts due to included exceptions for owner patterns of residential segregation; occupied single‐ and two‐family the greater choice of housing, the homes, was ultimately passed. Commission strongly believed, Interestingly, shortly before the law would reduce de facto segregation in was to take effect, there was a public schools. Similarly, the serious movement in the real estate Commission strongly believed that industry to hold a referendum vote limiting housing choice exasperated to nullify the new fair housing law. conditions in overcrowded This movement, however, subsided, neighborhoods leading to problems and was replaced by a “wait‐and‐ of crime, juvenile delinquency, and see” attitude. The referendum vote, personal and family disorganization. fortunately, never came about. Within its limited jurisdiction and The purposes of this law, in the view resources, the Ohio Civil Rights of the Ohio Civil Rights Commission, Commission sought to attack the was to accord freedom of residence problem of housing discrimination and equal dignity to all members of on a wide front, utilizing complaint society. In 1960, for example, 36.5% proceedings, educational techniques of non‐whites lived in substandard and community organization housing in the state, while the methods. Indeed, in the first 8 number for whites was only 13.7%. months after the passage of the Fair Minority group members, because of Housing Law, the Commission low income levels and received 120 housing discrimination complaints and found probable slow in coming. cause of discrimination in twenty‐ two percent of those cases. A Civil Rights Library A New Partner in Ensuring In 1966, mindful that one picture can be worth a thousand words, the Equal Employment Commission established a library of Opportunity audiovisual aids that could be borrowed without charge on topics That same year, the Ohio Civil Rights such as education, employment, Commission entered into its first housing and human relations. These partnership with the U.S. Equal aids were directed to different types Employment Opportunity of audiences and various age groups, Commission. The Commission was including sound films, slides and awarded a contract by the U.S. Equal film strips for children. The three Employment Opportunity films most in demand at the time Commission to study patterns of were “Adventures in Negro History,” discrimination in the machine tool “The Frederick Douglass Years,” and and glass industries. “The Negro in American History.” The study revealed that African The Commission also developed a American were frequently series of three hundred colored underemployed in this industry, and slides showing minority group in some areas excluded altogether. members in various employment This was especially true of white situations illustrating present‐day collar positions, such as sales job opportunities, with histories positions and office personnel, provided for each slide. These slides where African Americans held less were also available from the newly than one percent of the positions. established agency library. The Commission concluded that, in these industries, African Americans The Human Relations were both under‐trained and Institute underemployed, and that change in the practices of these industries was The following year, 1967, the Ohio Civil Rights Commission convened and black children, concluding that its first Human Relations Institute, quality education for every child, the theme of which was “Human white and black, needs to be a Relations in a Civil Rights synthesis of compensatory Atmosphere.” Nearly 400 programs and integrated education. individuals attended this two‐day Another presentation receiving event, which included civil rights widespread praise was “Riots and and human relations professional, the Law, or Who enforces Which educators, police and city officials, Law Against Whom?,” which community leaders and interested ascribed the failure to end the urban citizens. The sessions covered riots of the time to a lack of sincere throughout the event were commitment by government to solve numerous and covered a wide range urgent and glaring problems. of topics. Hopelessness, the presenter maintained, was created because of the slowness of change; if legal channels for redress of inequities of employment opportunities did not work, the presenter concluded, then resort would be had to extralegal and illegal methods.

Human Relations Institute confer­ ence, 1967 “Progress, painful and slow though it may seem, is being Given that school segregation was made. Unquestionably, voluntary the major issue of the time, a compliance, as an indirect result presentation entitled “Education of the Ohio Civil Rights Commis­ and Racial Imbalance in Schools,” sion’s existence, is by far the was of particular interest to those in greatest unseen portion of the iceberg.” attendance. This presentation discussed the detrimental effects of Hugo A. Sabato, Chairman, 1967 segregated schools on both white The study of the rubber industry

“Excuses and the cautious approach revealed similarly troubling to full utilization and implementa­ statistics. Again, while minority tion of the law are happily no longer group members were well‐ the accepted order of the day.” represented in unskilled and semiskilled positions, they held only Ellis L. Ross, Executive Director, 1967 two percent of apprenticeships and less than one percent of white collar positions. Surveying the Existence of A Study on Minority Discrimination

In 1968, the Commission conducted “Ohioans are autonomous in their two studies, one involving the hotel, privilege to lend wings to equality’s motel and restaurant industries and escalation.” the other involving the rubber industry. The study of the hotel, Ellis L. Ross, Executive Director, 1968 motel and restaurant industries revealed that while minority employees were employed in these industries, they were heavily Education in Ohio concentrated in jobs such as kitchen In the last year of that decade, the staff, housekeeping and other “back‐ Commission released a report of its of‐the‐house” positions, with some study on minority education in Ohio. employers expressing that the use of This study covered many areas, minority employees in other, more including the number and percent of public positions, would created minority students and staff, racial unspecified problems. These concentration in schools, minority employees, for all intents and employment, assignment of purposes, were completely absent teachers, placement of new teachers, from office, desk, hostess and teaching of racial differences, use of management positions. multi‐ethnic curriculum materials, and even transportation services. with an African American student population of less than 10 percent, African American teachers “There does not exist an agency comprised only one percent of with such controversial functions. teaching personnel. On the other Both Commissioners and staff hand, where the student population must, of necessity, be strongly was predominately African committed to faithful execution of the laws against discrimination American, nearly 60 percent of the in this state. We believe we are.” teachers were African American. These findings, the Commission Hugo A. Sabato, Chairman, 1969 concluded, indicated that factors of race and color played a role in the placement of teachers.

The major finding of this study was that Ohio public school students “Those who have bitterly opposed suffer seriously from racial isolation equality of opportunity and access in the educational process, and that are perhaps fewer in number today. the benefits of knowing persons of The residual emotions will subside different races, social backgrounds, with the newly­found reality of mu­ tual and positive gain—a realiza­ religions, cultures, and nationalities tion of every man’s right to his tiny were denied to most students. The place in the sun.” overwhelming number of students attended schools that had an African Ellis L. Ross, Executive Director, 1969 American student population of less than two percent, and more than half of African American students The bottom line was that nearly four attended schools with a white ‐fifths of Ohio’s students had no student population of less than two interracial experiences in their percent. formative school years. This type of segregation harmed students of all The placement of teachers followed races, the Commission concluded, very similar patterns. In schools because the overwhelming research to date indicated that children Unfortunately, law remains the learned better in integrated schools, best educator. and conversely, achievement scores This shift toward enforcement of students in racially segregated would become more evident as the schools were consistently lower agency moved into its second than those students in integrated decade. schools. * * * As the 1960’s drew to a close, there was a subtle shift in the paradigm of the Ohio Civil Rights Commission. While still focused on education as a tool for eliminating discrimination, the agency focused more of its efforts on enforcement through investigation and litigation. This shift is most evident in the message delivered to the Governor and Ohio General Assembly in 1969 by Ellis L. Ross, long‐serving Executive Director of the Ohio Civil Rights Commission:

There is perhaps a vestige of shame that accompanies the sorrow in some who held, and still hold, optimistically but untenably and irrationally, to the credo of education and good will as the proper resolution in matters of civil rights despite the abundance of evidence with which we are surrounded to the contrary. ENSURING EQUAL HOUSING OPPORTUNITY AND ENFORCING NEW CIVIL RIGHTS PROTECTIONS

“Even as shadows may not be cast without light, it is equally improbable that sources of light can really be obliterated by shadows. Laws, particularly civil rights laws, may reasonably be viewed as sources of light in terms of reducing the shadows of inequality, racial, ethnic and religious discrimination.”

Ellis L. Ross, Executive Director, 1970 Blockbusting, Affordable whites. The result was that a Housing and Fair Housing segregated white neighborhood Enforcement became a segregated African American neighborhood. At the beginning of this new decade, the Ohio Civil Rights Commission In one particularly egregious case, a commenced an aggressive homeowner filed a discrimination enforcement effort in the area of charge with the Commission when a housing, having become increasingly real estate salesperson came to her concerned about reports that door and asked her if she wanted to blockbusting was occurring in many sell her home, and if she would list Ohio cities. The Commission her home with his agency. When she targeted blockbusting because it declined, the salesperson asked her resulted in segregated housing and if she knew about the “race thwarted efforts to integrate problem,” and told her that “colored suburban neighborhoods. people live on close‐by streets.” Upon seeing her young child, the The type of blockbusting at issue salesperson even told her that “black resulted in a complete change of and white children playing together new suburban housing subdivisions will lead to interracial marriages.” from white to African American. This case was one of many that Unscrupulous real estate agencies resulted in a probable cause finding used panic selling techniques to and ultimately a conciliation induce whites to sell their homes at agreement. prices below market value, and African Americans then sought to Another major undertaking by the buy those homes. The African Commission at that time also American buyers, however, were involved housing. Specifically, the only shown homes in the agency conducted a housing survey “blockbusted” neighborhood and to determine the status of available there existed a kind of informal and satisfactory housing for agreement among real estate minority persons in Ohio. This agencies not to promote sales to survey was made possible by a grant from the U.S. Department of Housing and Urban Development. While the minority groups. Based upon the results of this survey indicated that results of this survey, the agency homebuilders, real estate brokers issued a series of recommendations. and mortgage lending institutions Among them, it was recommended viewed their conduct as in that colleges of education re‐ compliance with the state and evaluate their urban education federal fair housing laws, a series of courses to include subjects on urban public hearings held across the state life, minorities, poverty, African revealed allegations of blockbusting, American history and culture. It was panic selling and redlining. also recommended that new teachers added to the staffs of urban schools should be experienced “Even as shadows may not be cast urban education and teaching without light, it is equally improb­ minorities and the disadvantaged. able that sources of light can These and other recommendations really be obliterated by shadows. of this study were published in a Laws, particularly civil rights laws, may reasonably be viewed as report entitled “Teacher Training for sources of light in terms of reduc­ Urban Schools.” ing the shadows of inequality, ra­ cial, ethnic and religious discrimi­ nation.”

Ellis L. Ross, Executive Director, 1970

The Needs of Minority Students

In 1971, the Commission undertook a survey to determine if teacher and Ellis L. Ross served as the Executive Direc- administrator training was adequate tor of the Ohio Civil Rights Commission for to meet the needs of students from over twenty years. Building Capacity and coverage brought increased Increasing Visibility awareness of the agency’s activities, and twelve special radio and The following year, 1972, proved to television programs on the work of be a pivotal moment in the history of the agency were carried on stations the Ohio Civil Rights Commission. across the state. This was the year the Commission began to build the capacity— “The one constant since the Ohio through increased funding and Civil Rights Commission was cre­ additional staff—for truly aggressive ated has been the inadequate enforcement of Ohio’s laws against granting of funds permissive of discrimination. Indeed, the number adequate staffing. This reflects, of investigators was increased from with disturbing clarity, the 28 to 52, which was fortunate given Davidian resources with which the agency is legislatively ex­ that the same year the Commission’s pected to engage the Goliath of investigative case load increased by discrimination that stalks the fifty percent to a record number of State of Ohio.” almost 2,500 new charges of discrimination. Moreover, the Hugo A. Sabato, Chairman, 1971 Commission’s budget was nearly tripled for the next biennium, reaching 4.6 million dollars. Self­initiated and Systemic The year 1972 was also a one of greater visibility, as the Commission Investigations moved several of its regular At the same time, it was a year of meetings out of Columbus and stepped‐up investigations of large‐ encouraged public attendance and scale, systemic discrimination, inquiries. This also permitted initiating on its own motion 48 Commissioners and staff members systemic investigations. The to make personal contact with urban Commission tackled major cases of leaders and community‐based civil public employment—teacher rights groups. The resulting news assignments in the Columbus schools, hiring practices in the City result of unlawful discrimination of Euclid, and recruiting procedures would be granted a monetary award in the Cincinnati Fire Department. as part of a conciliation agreement, a Indeed, as a result of its consent order or a cease and desist investigation of Columbus schools, order. The most significant aspect of the Commission entered into a this new policy was the consent order with the Columbus consideration on monetary awards Board of Education providing for the for embarrassment, humiliation and racial balancing of faculty and indignity, as well as punitive awards professional staff in all public in cases of willful disregard of the schools in the system to eliminate un law. ‐integrated faculties, as well as to These guidelines underscored the reasonably and fairly distribute job agency’s belief that embarrassment, opportunities for minority teachers humiliation and indignity are the and professional staff members. natural consequences of unlawful All in all, these self‐initiated discrimination, that those who investigations brought the violate the laws against Commission into Ohio businesses discrimination must be penalized, employing over 80,000 persons, and and that unlawful discrimination can would have far‐reaching be reduced by making it expensive ramifications for employers to practice. throughout the state. A New Fair Housing Meaningful Relief and Problem: Steering Monetary Awards In the area of housing In furtherance of its aggressive discrimination, the Commission still enforcement efforts, the Commission confronted cases of blockbusting, also adopted guidelines for but a more sophisticated technique, monetary awards to compensate “steering,” was uncovered in a victims of unlawful discrimination. growing number of housing Under these guidelines, any person investigations. The practice of suffering a compensable loss as a steering involved directing minority group members to already That same year, a Housing Advisory integrated neighborhoods, rather Committee was appointed by the than offering a free choice of Commission. The purpose of this available housing. As a result of this committee was to discuss and select growing practice, provisions were problem areas in housing added to all housing conciliation discrimination and to make agreements requiring the real estate recommendations to the agencies involved to show and Commission on how those problems attempt to sell homes in non‐ can be addressed and solved. integrated areas to all minority clients who want to purchase homes Equality for Women (and in those areas, and similarly to show Men) and attempt to sell homes in integrated areas to all white clients The highpoint of 1973, however, was who want to purchase homes in the enactment of House Bill 610 by th those areas. the 110 General Assembly, which amended the law and made sex In 1973, due to the entrenched discrimination in employment, nature of housing discrimination in housing and places of public the state, the Ohio Civil Rights accommodations an unlawful Commission established a fair discriminatory practice. This housing office and entered into an legislation was in large part the agreement with the Ohio Real Estate result of the work of the Committee Commission designed to alleviate on the Status of Women, an discriminatory practices by person investigative committee, created by hold Ohio real estate licenses. This Governor James A. Rhodes in 1966. agreement was believed to be the first of its kind in the country, and The Ohio Civil Rights Commission other state and local human had been advocating to include sex relations commissions sought as a protected class for many years information from the agency on and was heartened to see the ways to establish a similar housing enactment of a law granting program. protection to men and women against sex discrimination. Although much broader in scope when alleged he was not hired as a introduced, the legislation was secretary by an employer who hailed as a long‐overdue addition to wanted only female secretaries. the state’s anti‐discrimination laws. With the addition of sex The Commission immediately discrimination as an unlawful engaged in an aggressive education discriminatory practice, the and outreach initiative to educate Commission also became an agency the public and regulated community whose findings were given regarding the new provisions “substantial weight” by the U.S. against sex discrimination. Equal Employment Opportunity Commission. This designation “We ask the legislature to add sex meant that the EEOC would rely as a basis of unlawful discrimina­ more heavily upon the agency’s case tion, recognizing the plight of processing and investigations than it women in our economic system.” had in the past.

James M. Friedman, Chairman, 1972

“With the hopeful advent of equal In the first six months that the law opportunity for overly denied fe­ was in effect the Ohio Civil Rights males we shall be called upon to Commission received nearly 700 develop new and more effective discrimination charges based on sex. methods and techniques. The agency should not, nor will it be The majority of cases involved permitted the privilege of relaxing discrimination in employment, with into an aura of comfort that occa­ women making complaints about sionally accompanies a hard won being paid less than men for doing victory.” the same work and being denied jobs that have traditionally been Ellis L. Ross, Executive Director, 1973 held by men. Although most of the sex discrimination charges were filed by women, some were filed by men, including one by a man who Associational discrimination against a person Discrimination and Liberal because of the race of a person’s association, commonly referred to as Construction associational discrimination.

The following year the Ohio Civil Rights Commission suffered a “The job of protecting a citizenry’s setback in its enforcement efforts civil rights goes to the very core of when when the Ohio Supreme Court a democracy. The Ohio Civil Rights handed down its decision in Lysyj v. Commission is confident it can do Ohio Civil Rights Commission. The the job.” case involved a charge of racial James M. Friedman, Chairman, 1973 discrimination brought by white woman who was ordered to leave a trailer park because she was visited The Court also held that a trailer by an African American friend. park fell within the definition of a place of public accommodation and In its decision, the Ohio Supreme was subject to that provision’s Court held that the Ohio Civil Rights prohibition against racial Commission was not empowered to discrimination. In doing so, the award compensatory and punitive Court demonstrated the marked damages. This ruling, consequently, difference between the new public nullified the guidance issued by the accommodations law and its Commission only a year earlier on predecessor, which as a criminal ordering monetary awards to the statute in derogation of the common victims of discrimination. was subject to the rules of strict Still, the decision did have a positive construction. element. The Court ruled that all The new public accommodations persons, both majority and minority law, the Court explained, as well as group members, were protected the other anti‐discrimination from discrimination, holding for the provisions of Chapter 4112, were first time that the state’s laws remedial statutes and unbound by against discrimination prohibit the rules of strict construction. When determining the breadth and Rights Commission. In this case, the scope of these laws, moreover, the Commission had issued a complaint Court held that they must be and notice of hearing before construed “liberally in order to completion of efforts to eliminate effectuate the legislative purpose the alleged unlawful discriminatory and fundamental policy implicit in employment practices by means of their enactment, and to assure that conference, conciliation and the rights granted by the statutes are persuasion. The Court held that a not defeated by overly restrictive completed and unsuccessful attempt interpretation.” by the Commission to eliminate unlawful discriminatory practices by conference, conciliation or persuasion “is a jurisdictional prerequisite to the issuance of a complaint, except where circumstances warrant the issuance of a complaint directly.”

As explained by the Court, the Commission is authorized to issue a complaint stating the charges and giving notice of a hearing only when Conference, Conciliation efforts at conciliation have been and Persuasion: A completed and have failed to remedy the problems by voluntary Jurisdictional Prerequisite compliance. “It is clear,” the Court concluded, “that the General Over the next few years, the Assembly intended a completed Commission suffered other setbacks attempt at conciliation to be a as a result of adverse court condition precedent to the issuance decisions. The first came in 1975 of a complaint.” when the Ohio Supreme Court issued its decision in State ex rel. The second came two years later Republic Steel Corp. v. Ohio Civil when the Ohio Supreme Court issued its decision in State ex rel. insufficient staffing and a growing General Motors Corp. v. Ohio Civil inventory of cases, the ___ General Rights Commission and further Assembly enacted Senate Bill 162 constrained the Commission’s and extended the time within which enforcement efforts. In this case, the the complaint must be issued to two Commission issued a complaint and years after the alleged unlawful notice of hearing without attempting discriminatory practice was to engage in methods of conference, committed. conciliation and persuasion to eliminate the alleged unlawful discriminatory employment “The caseload which confronts practices. This time, however, the the Ohio Civil Rights Commission Commission argued that the is becoming greater and greater, and the staff is finding it increas­ circumstances warranted the ingly difficult to keep up with the issuance of a complaint and notice of steady flow that is almost inun­ hearing directly because the large dating the Commission.” volume of pending charges did not permit such attempts at conciliation Burt Silverman, Chairman, 1974 prior to the expiration of the statutory one‐year period for the issuance of a complaint. Credit and Handicap The Ohio Supreme Court, building Discrimination upon its earlier precedent, was not persuaded. Instead, the Court held During this same time period, other that that “the inability to comply significant pieces of civil rights with the statute of limitations is not legislation were enacted, further a circumstance which warrants an expanding state’s anti‐ exception to the requirement that discrimination law and the conciliatory efforts precede the jurisdiction of the Ohio Civil Rights complaint.” Commission. The first enactment, Senate Bill No. 59, was passed in In response to the underlying issues 1975 by the 11th General Assembly giving rise to these cases— and prohibited discrimination in the agency added a handicap specialist, extension of credit on the basis of and spent the first months race, color, religion, sex, national developing goals and objectives to origin, ancestry or marital status. make the handicapped and non‐ handicapped citizens of Ohio aware of the new law. The Commission received a substantial number of requests for training programs, which suggested that disabled persons were beginning to come out into the world of work, education and places of public accommodations. Businesses showed particular interest in understanding the duty to provide OCRC Staff, Mohican Training Con­ reasonable accommodations and ference, 1976 how to make buildings accessible to persons with disabilities. The second enactment, Senate Bill 162, was passed in 1976 by the

112th General Assembly and added “The business of equal opportunity provisions prohibiting for humans is a very busy job. It discrimination on the basis of takes an awful lot of working at it handicap in all matters falling under to really bring it off. Rarely will the jurisdiction of the agency. This there be found jobs in a lifetime legislation gave handicapped more painfully frustrating than the efforts to discover and substan­ persons equal opportunity in the tially prove and remove discrimi­ areas of employment and housing, nation when cleverly cloaked in its and full and equal access to and subtlest guise. Pursuit can consume within places of public the greater part of a lifetime. As a accommodations. matter of fact, it has.”

In order to enforce this new addition Ellis L. Ross, Executive Director, 1975 to the Commission’s jurisdiction, the Intercultural Affairs and purpose of these programs was to National Origin provide key community individuals with the proper and necessary Discrimination information to enable them to render a better service to the Latino In 1976, the Ohio Civil Rights community, and to stress the need Commission established a division for law enforcement officials to on intercultural affairs, whose develop better community relations mission was to develop and apply a through equal employment program oriented approach to opportunities for Spanish speakers effectively reduce the incidence of and the establishment of community discrimination on the basis of advisory groups. national origin. This division sought to increase the marketable employment skills of Spanish speakers by developing and improving employment and training services, and to increase the availability of affordable standard housing through new construction.

The efforts of this new division— responsible for planning, proposal writing and funding advocacy— resulted in the initiation of several innovative programs. One such program was the development and implementation of a college preparatory program for Latino high school graduates and drop‐outs. Above: Commission Staff Meet­ ing, 1976; Below: Commission Another program provided training Meeting with EEOC, 1976 for housing specialists and law enforcement officials. The basic conference in 1978 entitled “Teacher

Education and the Challenge of “We, too, share the dream of those who toil in the vineyards—the vi­ Desegregation.” A positive outcome carious pleasure drawn from the of this conference was the realization that all may someday development of pertinent quaff the wine pressed from our ef­ recommendations for teachers, forts.” including the creation of a statewide

program of teacher development, Ellis L. Ross, Executive Director, 1976 requiring more hours of in‐service training on desegregation and The division on intercultural affairs related issues, and insuring that the was widely hailed by community distribution of state funding is leaders from every major closely related to the metropolitan and rural area of the implementation of multi‐cultural state for its leadership and experiences and curriculum. effectiveness in providing an organizational instrument in increasing local funding opportunities, in improving the delivery of services and contributing to the improvement of the societal conditions for the Spanish speaking people in Ohio. The following year saw the creation of the Ohio Commission on Spanish Speaking Affairs. The Challenge of Desegregation “Teacher Education and the Challenge of The Commission also continued its Desegregation,” Education Conference, 1978 . efforts in the area of education, sponsoring a statewide educational The Hearings Division

“The record, from 1959 to date, is In 1979, the Commission established commendably persuasive as regards an internal hearings division to the broader spread of equal oppor­ tunity for Ohioans than would have handle public hearings, tightening occurred absent the order dictated accountability over this very by Ohio Revised Code, Chapter important agency function. In 4112.” previous years, the conducting of public hearings had been assigned to Ellis L. Ross, Executive Director, 1977 attorneys in private practice on a contract basis. The hearings division was comprised of three full‐ The First Work Sharing time hearing examiners.

Agreement The establishment of the hearings That same year, the Ohio Civil Rights divisions resulted uniform hearing Commission entered into its first procedures and consistent decisions, work sharing agreement with the as well as substantially reduced the U.S. Equal Employment Opportunity time period for conducting public Commission, providing for the dual hearings through the use of more filing of employment discrimination orderly administrative procedures. charges and which divided case Affirmative Action and Age processing responsibilities according to each agency’s resources Discrimination and work capacity. In the latter part of the decade, the This arrangement eliminated the responsibilities of the Commission duplication of effort between the continued to expand. In 1977, two agencies and permitted the Senate Bill 4 was enacted by the ____ development of compatible and General Assembly, requiring all state consistent investigative standards agencies and political subdivisions and procedures. To this day, the which have undertaken affirmative Commission maintains one of the action programs to file progress largest work sharing agreements. reports with the Commission on an annual basis. The Commission, then, was a subtle and basic method of would be required to analyze and crippling an agency’s effectiveness. evaluate the progress reports and The question, as he saw it, was how report its findings to the General to draw the line between what the Assembly. Ohio Civil Rights Commission can effectively do and what the agency A few years later, in 1979, the can be legislatively delegated to do. jurisdiction of the agency was once again expanded. With the * * * enactment of House Bill 598 by the 114th General Assembly, age was added as a prohibited basis of discrimination in employment and in places of public accommodation.

As the decade came to an end, and the Ohio Civil Rights Commission observed twenty years of enforcing the state’s anti‐discrimination laws, the Executive Director at the time, Ellis L. Ross, issued a grim prediction regarding the future of the agency.

In light of the funding shortages, continually adding to the jurisdiction and workload of the agency—while portending to be extending civil rights protections— in fact would only further dilute the effectiveness of the agency. Overloading an agency with work without increasing resources to accomplish that work, he explained, SETTING THE GROUNDWORK FOR FUTURE CASES AND EXPANDING THE FAIR HOUSING LAW

“We are living in a complex and stressful society. If legislation is to succeed in this area, it must be reinforced by deliberate programs of voluntary action by government, business, industry, community organizations and individuals. Legislation and voluntary actions are strengthened by each other. The answer lies within the hearts and minds of every Ohio resident to translate the intent of human rights legislation into practice.”

Robert D. Brown, Executive Director, 1981 A Highpoint in procedure was immediately Investigative Procedures successful, achieving a resolution rate above thirty percent. The Ohio Civil Rights Commission began its third decade of enforcing Protection from Pregnancy the state’s anti‐discrimination laws Discrimination by attaining a milestone in the This same year, the Ohio Civil Rights agency’s investigate procedures. Commission’s jurisdiction was After adopting a new rapid expanded to include pregnancy processing procedure that was discrimination in employment with implemented by the U.S. Equal the enactment of House Bill 19 by Employment Opportunity the ____ General Assembly. This Commission, the Commission was addition of pregnancy as a protected certified by the EEOC as having class meant that pregnant women investigative procedures equal to or cannot be fired or forced to take a better than any other agency in the leave of absence because of country. For the Commission, this pregnancy or related medical gave the agency the credibility and conditions. The pregnancy confidence that it was doing quality provision applied to all areas of work and was worthy of the trust employment—hiring, promotion, embodied in its federal certification. firing, seniority rights, fringe In 1980, the Commission benefits, sick leave and insurance. implemented a fact finding This legislation was introduced by conference procedure which Representative Michael Stinziano of brought the disputing parties face‐to Columbus, who explained that the ‐face to discuss their positions and state law previously allowed voice their concerns. The primary “employers to grant disability pay to purpose of the fact finding men to have hair transplants and conference procedure was to vasectomies, but allowed employers achieve mutual resolution of to refuse these same benefits to discrimination charges in the female employees who were shortest possible time. This pregnant.” In short, under this provision a pregnant employee who the basis of his race. After a public is able to work must be treated like hearing, the Commission issued an all other workers, and if she cannot order requiring that he be reinstated work, she must receive the same to the apprenticeship program with benefits provided to other sick or back pay. disabled workers at her place of employment.

“The most important aspect of hu­ man rights legislation is the coop­ eration and goodwill of all people so that everyone can be treated with equality and dignity despite differ­ ences between individuals.”

Robert Brown, Executive Director, 1981

Reliable, Probative and Substantial Evidence

In 1981, the Ohio Supreme Court Robert D. Brown, Executive decided the case that would forever Director define the manner and method of investigating and litigating civil When the case reached the Ohio rights cases: Plumbers & Steamfitters Supreme Court, the issued focused Joint Apprenticeship Committee v. on the meaning of “reliable, Ohio Civil Rights Commission. This probative and substantial evidence,” case arose from a discrimination the phrase used to describe the type charge filed by an African American and amount of evidence needed to man, alleging that he was discharged support the findings issued by the from an apprenticeship program on Commission following a full evidentiary public hearing. The reason for the adverse action. Then, Court—noting that the phrase was as the final step in this process, the not defined by statute and that its Commission must prove that the prior decisions recognized that stated reason is a pretext for federal case law interpreting Title discrimination. VII of the Civil Rights Act of 1964 was generally applicable to cases involving alleged violations of the “In an advocate role, the Ohio Civil state’s anti‐discrimination laws— Rights Commission has facilitated the increased participation of those held that "reliable, probative, and persons in groups previously denied substantial evidence" in an access to the political economic and employment discrimination case social mainstreams within the brought pursuant to R.C. Chapter public and private sectors of our 4112 means evidence sufficient to society. As educators, we have support a finding of discrimination attempted to develop and implement programs to sensitize the under Title VII.” citizens of Ohio as to their needs, Based upon this holding, the Court frustrations, fears and aspirations of then went on to adopt the now‐ minority populations.” familiar framework for evaluating Robert Brown allegations of disparate treatment Executive Director, 1982 established by the U.S. Supreme Court in the seminal case McDonnell Douglas v. Greene. Applying the flexible formula established in that Over time, the rationale of this case case, the Commission must establish would be used to incorporate the a prima facie case of discrimination, legal standards of other federal anti‐ thereby eliminating the most discrimination laws such as the Age common nondiscriminatory reasons Discrimination in Employment Act for the adverse employment action. of 1967 and the Americans with If a prima facie case is established, Disabilities Act of 1990. It is no the employer must set forth some exaggeration to say that to this day legitimate, nondiscriminatory no case has proven to be more influential than the Plumbers &

Steamfitters case, having been cited, applied or relied upon in literally “One measure of a culture's vi­ tens of thousands of court cases and ability and maturity is estab­ administrative investigations. lished by how well it addresses its problems. We gain nothing Alcoholism and Drug by pretending alcoholics and Addiction a Civil Rights drug addicts can solve their Problem problems without help or that substance abuse problems do A few years later in 1986, the Ohio not exist. By affirming that alco­ Supreme Court decided another holics and drug addicts are important case, Hazlett v. Martin handicapped, to the extent that Chevrolet, Inc., this one involving the a dependency exists and has not scope of the provision prohibiting yet compromised work skills, we discrimination in employment on seek to deal with a problem at a the basis of handicap. This case point where these individuals involved an employee who are still productive members requested a temporary leave of of society, can still be helped, absence to obtain medically and still have the incentive to recommended care and treatment at help themselves. Beyond this a residential drug treatment facility point the statute does not pro­ for his addiction to alcohol and tect the chemically dependent drugs, but in response to his request individual. It is with these con­ was summarily terminated. The siderations in mind that we hold issue before the court was whether that drug addiction and alcohol­ alcoholism or drug addiction ism are handicaps.” constituted a “handicap” as defined in by the state’s anti‐discrimination Justice Ralph S. Locher laws. Ohio Supreme Court, 1986 In its decision, the Court took notice that drug addiction creates in its victims a debilitating chemical Sykes of Akron and enacted by the imbalance that is an abnormal 119th General Assembly. This physical condition. This type of legislation greatly expanded the condition, the Court further noted, jurisdiction of the Ohio Civil Rights limits the user's functional ability, Commission and specifically including physical endurance, empowered the agency to award full mental capacity and judgment. and complete relief to the victims of While treatment of a drug addiction housing discrimination, including may cause the condition to go into compensatory and punitive damages remission, the effects of the drug and attorneys fees. may remain for a considerable The aim of the new law, at least in period of time. Consequently, the part, was an attempt to make the Court held that alcoholism and drug state law substantially equivalent to addiction are handicaps, and the federal fair housing law. Since persons affected by alcoholism and its enactment in 1975, the state law drug addiction are protected under had been weakened by several court the law. decisions, beginning with the Lysyj Still, the Court was clear in that it decision in 1974 which prohibited was not endorsing alcohol abuse or the Commission from awarding drug usage. If alcoholism or compensatory and punitive chemical dependency adversely damages. affected job performance of an At first, realtor associations, the employee, the Court explained, an homeowners insurance industry and employer was clearly within its other groups strongly opposed the rights to discharge that employee. passage of the amendments to the Strengthening the Fair fair housing law. These groups, Housing Law however, dropped their opposition to the amendments when the In 1987, House Bill No. 5, which provision empowering the amended and greatly expanded the Commission to self‐initiate state’s fair housing law, was investigations of potential sponsored by Representative Vernon discriminatory housing practices was removed. an adverse employment decision was motivated by discriminatory While widely recognized as one of intent. In upholding the decision of the strongest state fair housing laws the Commission, the Court took in the country, there was an almost special note of the fact that evidence immediate concern regarding the was presented that some of those Commission’s ability to enforce the persons who were involved in the new law. This, however, was not due supervisory and termination “chain to a lack of technical expertise but of command” had previously rather a perception of inadequate admitted to being racists and funding and resources. engaging in racist behavior.

The Infectious Nature of The crux of the Dayton Power & Discrimination Light case was that discrimination infused into a report, That same year, the Ohio Supreme recommendation, or evaluation Court issued a decision enhancing leading to an adverse employment the Commission’s effort to uncover, action was just as harmful, and just prove and remedy unlawful as illegal, as its more blatant discriminatory employment counterparts, infecting the process practices. The case of Dayton Power with discriminatory animus . The & Light Company v. Ohio Civil Rights Court’s opinion was a clear Commission involved an African acknowledgment that it made no American employee who was difference that the person making terminated, allegedly for engaging in the ultimate decision was not “horseplay.” His direct supervisors personally motivated by had engaged in blatantly racist discriminatory intent, if the same behavior, but did not make the cannot be said of other persons ultimate termination decision. involved in making that decision. The Ohio Supreme Court held that the biased behavior of a person involved in the decision‐making process could be used to prove that The Ohio Employment Overall, the studies have resulted in Discrimination Studies three, basic recommendations for preventing employment In the late 1980’s, the Commission discrimination: entered into a partnership with two 1. focus on training and selection professors from Wright State of front‐line supervisors – 55% University, Dr. William Slonaker and of claimants identify their Dr. Ann Wendt, that would last for immediate supervisor as the nearly 30 years. In what would source of the discrimination; come to be known as the Ohio Employment Discrimination Studies, 2. monitor every potential these professors compiled a discharge situation (including collection of more than 10,000 higher‐level review before employment discrimination claims discharge) – 53% of claimants filed in Ohio since 1985, creating a have lost their jobs; and, stratified random sample consisting 3. fill‐in the blank – after of approximately 8% of all claims analyzing more than 10,000 filed. Moreover, because Ohio’s claims of employment workforce, industries, and jobs discrimination, it appears that essentially mirror those of other many are a result of a lack of states, the results are generally communication. When reflective of the country as a whole. employment related actions Today, the Ohio Employment are taken without explanations Discrimination Studies database to the affected employees, they represents the most complete tend to “fill‐in the blank” often database on employment with it must be because I am discrimination in the country. The Black, or a woman, or over 50 information derived from this years of age, or pregnant, and database has provided the so on. foundation for numerous inquiries, The studies also provided the scholarly examination and timely, information for the first overview of pertinent recommendations. employment discrimination in restaurant industry (employing retaliation after complaining about nearly 10% of workers in the sexual harassment in the workplace. country), and provided insights into In fact, over 60% of those women claims filed against four types of who experienced retaliation lost restaurants: national or regional their jobs, and 13% experienced quick service, national or regional some form of physical aggression. table service, local quick service, and The next highest rate of retaliation local table service. While race was was 14% for both race and gender consistently the most common basis, claims. sexual harassment claims in the One possible explanation for the restaurant industry were 69% significant difference is that sexual higher as compared to other harassment is fundamentally industries. different from other forms of discrimination. In all others, the victim is rejected by the person discriminating. In sexual harassment, the victim is rejecting the person discriminating (along with that person’s sexual overtures). There appears to be an urgent need to retaliate and thus turn the tables Left: Dr. Ann Wendt, Wright State Univer‐ sity ; Right: Dr. William Slonaker, Wright back to the typical pattern of State University rejection.

One of the more pertinent findings Along the same lines, women have made as part of the studies was the always known they risk job loss and glaring discrepancy between equal other forms of retaliation if they opportunity in hiring practices and report sexual harassment. Using termination. For many years, information provided through the employers had been urged to studies, however, that risk was monitor racial minority hiring determined to be 47% – that is, practices (the “front door”), and as a nearly half of all women report result many did, in fact, make employment opportunities available to all qualified applicants, regardless “The Ohio Civil Rights Commis­ of races. However, the new problem, sion is embarking on its second based upon information gleaned quarter­century with a challenge from the studies, is the “back door.” that duplicates the first. The It was determined that African Commission will continue to ad­ American male claimants have a dress old as well as new issues as they arise, with the high hope of higher chance (53%) of losing their being able to effectively recom­ jobs during the first year of mend changes that will ensure employment, than do other male the rights and dignity of all per­ claimants (32%). In other words, sons, and without being abridged employers successfully recruit and by those who serve in positions of hire African American males, but power.” then their supervisors devise ways Robert D. Brown, to of get rid of them. Executive Director, 1984 Perhaps the most troubling revelation of the studies, however, was the degree of discrimination practiced upon women who become * * * pregnant during their employment. A comparison was conducted of discrimination claims filed by women who went on medical leave due to pregnancy and those who took medical leave for other medical reasons. The results, to say the least, were stark: pregnant women had a 1,150% higher risk of not being returned and thus losing her job, demonstrating the entrenched bias against pregnant females in the workplace. A NEW CIVIL ACTION AND PERSONAL LIABILITY FOR MANAGERS AND SUPERVISORS

“A majority of this Court have, time and time again, found that there is no place in this state for any sort of discrimination no matter its size, shape, or form or in what clothes it might masquerade.”

Justice Andrew Douglas, 1999 A Private Civil Action for provision making certain violations Damages of that chapter a third degree misdemeanor and replaced it with a The new decade began with a provision subjecting any person who significant change to the violates any section of that chapter enforcement framework of the to a civil action. The Court, rejecting state’s anti‐discrimination laws. Up arguments that this amendment to this time, it was widely accepted applied only to a few specific types that, except for age discrimination, of actions, held that a civil action for employment discrimination claims damages or injunctive relief was needed to be brought to the Ohio available to remedy any form of Civil Rights Commission as the discrimination prohibited under administrative body created to Revised Code Chapter 4112. investigate such claims. This all changed in 1991 when the Ohio A strongly voiced dissent, however, Supreme Court issued its decision in argued that the decision “guts the Elek v. Huntington National Bank. administrative scheme established to handle discrimination claims and “ discards the expertise that the Ohio As the Ohio Civil Rights Commis­ Civil Rights Commission has sion enters its fourth decade of developed over the past thirty service on behalf of all Ohioans, years,” labeling it the “Full the issue of discrimination, unfor­ Employment Act for Lawyers.” tunately, remains an evil and ever ­growing presence in this Ameri­ can society.” The unanswered question immediately following the decision Joseph T. Carmichael in Elek was the applicable statute of Executive Director, 1991 limitations, since the provision specifically authorizing the civil action did not reference a limitations The issue in the Elek case centered period. The Ohio Supreme Court around a little‐noticed amendment answered this question two years to Chapter 4112 that eliminated the later in Cosgrove v. Williamsburg of Cincinnati Management Company, bypass the administrative process. holding that statute of limitations for filing a private action was six years. The Bona Fide Occupation This, it is of interest to note, is Requirement significantly longer than the 6‐ month period for filing an Since its creation, the state’s anti‐ employment discrimination charge discrimination provision contained with the Commission. an exception for certain discriminatory employment A subsequent unanswered practices when based upon a bona question—whether punitive fide occupation qualification. It was damages could be awarded in a civil not until more than 30 years later action—was answered in the that this provision would be affirmative when, in 1999, the Ohio addressed by the Ohio Court. The Supreme Court decided Rice v. case, Little Forest Medical Center v. Certainteed Corporation. In holding Ohio Civil Rights Commission, that punitive damages could be involved a hospital’s gender‐based awarded, the Court took note that policy of hiring only females as Chapter 4112 possesses a deterrent nurse’s aides. component concerned with preventing socially noisome In its analysis of the bona fide business practices, that is, occupational qualification exception, discrimination. the Court at the outset recognized that this defense, inasmuch as it Despite several efforts over the constitutes an exception to the years to legislatively overrule the public policy embodied in Chapter Elek and Cosgrove decisions, they 4112 as a whole to eliminate remain the law to this day. discrimination, must be construed Moreover, these decisions did not narrowly. This defense, moreover, have the predicted impact of requires the employer to initially weakening the Commission’s demonstrate that the hiring criteria enforcement role and authority, utilized involve the "essence" of its although no record is kept of the business, and that it had a factual number of civil actions filed that basis for believing that all or substantially all members of the guardian, as well as a person who is excluded gender would be unable to pregnant or in the process of perform safely and efficiently the securing legal custody of a person duties of the job involved, or that it under 18 years old. is impossible or highly impractical to differentiate the qualified from the unqualified in a nondiscriminatory “Discrimination in American is manner. not as blatant in most cases as in the early years of the civil rights Expanding Fair Housing struggle. Rather, its practice has become sophisticated, technical, Protections and frequently masked in disguise. Enforcement But it is there, and it is increasing.” In 1992, the state’s fair housing law was once again amended, this time Joseph T. Carmichael with the enactment of House 321 by Executive Director, 1992 the 119th General Assembly. This legislation made several significant The protections already afforded to changes to the fair housing law. As persons with handicaps were was the case a few years earlier, this expanded in several important ways. legislation was sponsored by To begin with, the definition of Representative Vernon L. Sykes of handicap was also modified to Akron. include not only persons with a The most significant change physical or mental impairment that implemented by this legislation was substantially limits one or more the addition of a new class of major life activities, but also persons persons protected from with a record of a physical or mental discrimination in housing. This new impairment and persons who were class, familial status, protected regarded as having a physical or persons from discrimination due to mental impairment. In other words, the presence of a person under 18 the new law protected persons with years old living with a parent or an actual disability, persons with a record of a disability, and persons ♦ refuse to make reasonable who were mistakenly perceived as accommodations in rules, being disabled. policies, practices, or services when necessary to afford a Additional changes relating to person with a handicap equal handicap discrimination specifically opportunity to use and enjoy a made it an unlawful discriminatory dwelling unit, including housing practice to do any of the associated public and common following: use areas. ♦ discriminate in the sale or rental Perhaps the most significant change of housing accommodations on relating to handicap discrimination the basis of a handicap of the was the enactment of a provision to buyer or renter, a person residing ensure that the design and with the buyer or renter, or a construction of new housing person with whom the buyer or accommodations were accessible to renter associates; and usable by disabled persons. ♦ make any inquiry of a buyer or Under this new provision, it was an renter to determine the existence unlawful discriminatory housing of, or the nature or severity of, a practice to fail to design and handicap; construct covered multifamily dwellings for first occupancy on or ♦ refuse to permit, at the expense after June 30, 1992, in accordance of a person with a handicap, with the following requirements: reasonable modifications of existing housing 1. the dwellings must have at least accommodations that are one building entrance on an occupied or to be occupied by the accessible route, person with a handicap, if the 2. the public use areas and common modifications may be necessary use areas of the dwellings must to afford that person full be readily accessible to and enjoyment of the housing usable by handicapped persons, accommodations; and 3. all the doors designed to allow dollars to ten, twenty‐five or fifty passage into and within all thousand dollars, depending upon premises shall be sufficiently whether previous discriminatory wide to allow passage by persons housing practices had been who are in wheelchairs, committed.

4. all premises within covered multifamily dwelling units must “Making the work, play and liv­ contain an accessible route into ing environs more amenable to and through the dwelling, the needs of persons with dis­ abilities will enable them to lead 5. all light switches, electrical fuller, more active and productive outlets, thermostats, and other lives in the American society.” environmental controls must be in accessible locations, Joseph T. Carmichael Executive Director, 1993 6. the bathroom walls must contain reinforcements to allow later installation of grab bars, and The legislation also ensured the right to have a jury trial, and also 7. the kitchens and bathrooms must provided the parties to an be designed and constructed in a administrative complaint pending manner that enables an before the Commission with the individual in a wheelchair to right to elect to have the maneuver in those rooms. administrative proceedings With respect to fair housing addressed in a civil action. Along the enforcement, this legislation same lines, the Commission was also expanded the tools available to, as empowered to seek temporary or well as the damages that could be permanent injunction or a sought and awarded by, the Ohio temporary restraining order. Civil Rights Commission. As an Moreover, the agency could do so administrative agency, the agency’s even prior to conciliation efforts or authority to award punitive damages the issuance of a formal complaint. was raised from five thousand While not direct self‐initiation authority, moreover, it is worth because at that time (and to this noting that the Commission was day) the victim of a discriminatory empowered to undertake on its employment practice can file a motion investigations of problems of charge with the Commission, housing discrimination. The commence a civil action in state authority to independently court, or both. Representative investigate housing discrimination Sykes, however, made clear that had been something sought by the there was no middle ground and agency for many years. urged defeat of the legislation if the proposed amendments were not The passage of this legislation was removed, stating that he “would the subject of a contentious rather let the bill die than pit civil legislative debate, though not rights law in employment against directly related to fair housing. The those in fair housing." This was a debate centered around an effort to bold move given that the state stood legislatively overrule the Ohio to lose substantial federal funding if Supreme Court’s decision in Elek v. the changes to the state’s fair Huntington National Bank. The housing law were not enacted. proposed amendments to the legislation would require At the end of the day, though, all employment discrimination victims employment‐related provisions to first bring their claims to the Ohio were removed, the legislation was Civil Rights Commission. The passed, and the laws were brought Commission would then determine into substantial equivalence with the whether probable cause exists to federal fair housing law. believe that the law had been Although unusual in a state violated. If, however, the ordinarily lacking any detailed Commission determines there is no legislative history, the intent probable cause, victims could not underlying this legislative file a claim under the state law. enactment was extraordinarily clear. The proposed amendments, of The legislation, House Bill 321, was course, would have struck a declared to be an emergency significant procedural change, measure necessary for the immediate preservation of the The Court held that interest should public peace, health and safety, and begin to run on a back pay award stated that “immediate action is from the time at which the party was required in order for Ohio’s Fair discriminated against, in order to Housing Law to achieve substantial restore victims to the economic they equivalency with the federal Fair would have been in had no Housing Act.” This legislation discrimination occurred. To do likewise stated that not amending otherwise would in effect give the the state’s fair housing law would discrimination employer an interest‐ result in a withdrawal of free loan until the back pay award is certification of substantial finalized in some official equivalence “and a loss of eligibility determination. Any ambiguities in for at least 700,000 in federal funds the amount of back pay to be for fair housing investigation and awarded, moreover, should be enforcement in Ohio.” resolved against the employer. Ambiguities in Back Pay As for unemployment compensation Resolved Against the benefits, the Court further held, to allow these benefits to be deducted Discriminating Employer from a back pay award would serve only to reduce the deterrence In 1994, the Ohio Civil Rights against discriminatory conduct Commission won a significant legal while conferring no gain upon the battle for the victims of victim. The risk of over‐ or under‐ discrimination, ensuring that they compensation, the Court explained, receive back pay to the fullest extent should be borne by the perpetrator allowed by law. In Ohio Civil Rights of the discrimination, not the victim. Commission v. Ingram, the issue before the Ohio Supreme Court Disability in Higher involved back pay—how it should be calculated and whether it should be Education offset by unemployment While not a source of a large number compensation or similar benefits. of charges, the statutory prohibition against discrimination on the basis of handicap in higher education determination that the came to the forefront in Ohio Civil accommodations were not Rights Commission v. Case Western reasonable, arguing that the Reserve University. In this novel evidence—particularly a blind case, a blind college student sought student at another university who admission to medical school, but her attended and successfully completed application was denied. The reason medical school years earlier—was for the denial was the necessity of sufficient to support the observation in medical education determination of the Ohio Civil and the inability to accommodate Rights Commission that the blind the student inability to see. student should have been admitted and accommodated in this case. In ruling against the blind student, the Court held that an otherwise qualified handicapped person is one “If a particular professional door who is able to safely and is to be closed to an entire class of substantially perform an educational people, it should not be done in program's essential requirements such a cavalier manner. The deci­ with reasonable accommodation, sion as to whether a medical and that an accommodation is not school may deny admittance to reasonable where it requires the blind is of great social impor­ fundamental alterations in the tance. It cannot be made without essential nature of the program or a complete and careful consid­ imposes an undue financial or eration of all available informa­ administrative burden. In the tion concerning possible modifi­ Court’s view, there was insufficient cations and accommodations, as evidence to support that the student well as the capabilities and limi­ could be accommodated, and that tations of the blind.” the accommodations sought would have worked a fundamental change Justice Alice Resnick, 1996 to the medical program. The dissenting opinion further The dissenting opinion, in the case, argued that in order to give however, strongly disagreed with the meaningful consideration to to whether the law has been whether reasonable violated, nor do they express an accommodations would enable a opinion as to whether one party is blind student to effectively complete right or wrong. the medical school program, the medical school must explore the nature and benefit of available “The expertise and dedication of methods of accommodating the our staff is reflected in the supe­ rior work product produced on a blind, something that did not daily basis. Our partners have happen in this case. lauded our proactive relation­ ships as we work together to ful­ Mediation and Alternative fill our mission.” Dispute Resolution Francis W. Smith In 1998, the Ohio Civil Rights Executive Director, 1998 Commission implemented a pilot mediation program. In preparation for this pilot program, several Due to the initial success of the pilot, employees received forty hours of the Commission expanded the classroom instruction in alternative mediation program and began dispute resolution techniques from offering mediation in all Capital University Law School. discrimination charges. The Shortly thereafter, the Commission expanded program was equally began offering mediation on a successful: 400 cases were limited basis to the parties involved submitted for mediation with a in housing discrimination charges. resolution rate above 70%. As a result, the mediation program was The mediators provide a structured made a permanent component of process allowing the parties to the agency’s administrative process, explain their positions, and then and quickly proved to be a very conduct private caucuses in order to successful program. assist them in reaching a mutually agreeable resolution. The mediators In 1999, the mediation program do not offer advice or suggestions as received a “Best Practices” award from the U.S. Department of Housing employment discrimination and Urban Development for its enforcement. mediation program, selected from The issue in Genaro concerned the among 3000 entries from across the liability of individual supervisors country. and managers for discriminatory Today, the mediation program employment practices. Given the continues to see dramatic success. Court’s inclination to interpret the The mediators consistently resolve state’s anti‐discrimination law in a upwards of 80% of the cases manner consistent with its federal submitted for mediation, and usually counterpart, the issue seemed to be do so within 30 days after the one of easy resolution. Under discrimination charge is filed. federal law, individual supervisors and managers could not be held liable for discriminatory employment practices.

In a surprising decision, however, the Ohio Supreme Court declined to follow federal precedent, explaining that the definition of “employer” Commission “All Hands” Meeting, under Chapter 4112 was on its face 1999 much broader in scope than the Personal Liability of definition of that term under federal Managers and Supervisors law. Based upon the state definition and its prior decisions on workplace As the decade began with a discrimination, the Court held that significant change to the law with individual supervisors and the decision in Elek v. Huntington managers are accountable for their National Bank, so it would end on a own discriminatory conduct similar note. In 1999, the Ohio occurring in the workplace and may Supreme Court issued its decision in be held jointly and/or severally Genaro v. Central Transport, Inc., and liable with the employer for their forever changed the landscape of discriminatory conduct. It is safe to say that no decision in the history of Chapter 4112 did more to capture the attention of managers and supervisors than the Genaro decision.

To be certain, the 1990s proved to be a challenging, but rewarding, year for the Commission. Not only did the agency win significant cases in the courts, it also reached a highpoint in investigations, at one point receiving over 6,200 discrimination charges. Even greater challenges, though, awaited the Commission as it entered the new millennium.

* * * REDESIGNED AND READY TO FACE THE NEW CHALLENGES OF A NEW CENTURY

“Now is not the time to rest on our laurels, lest we risk the re­emergence of the very complacency that permitted bigotry, prejudice and intolerance to flourish in the first place. Now is the time to reaffirm our commitment to civil rights, to fortify our efforts, to remain vigilant in our beliefs, to deliver the promise of equal employment opportunity, and to achieve the dream of a world free from discrimination for future generations. The Ohio Civil Rights Commission stands ready to deliver the promise and achieve the dream.”

G. Michael Payton, Executive Director, 2005 The Workforce Redesign resolve that particular charge, which Initiative stands in stark contrast to the agency’s past practice of conducting As the Ohio Civil Rights Commission “one‐size‐fits‐all” investigations. began its fifth decade, it laid the With this new process, the agency foundation a major re‐engineering could more efficiently maximize its of its investigative process. Through staff and resources, a particularly a first‐of‐its‐kind grant from the timely development given the series Ohio Department of Administrative of budget reductions that would be Services and the Ohio Civil Service endured by the Commission over the Employees Association, the Commis‐ next several years, taking it to levels sion implemented the Workforce Re‐ of funding and staffing not seen for design Initiative in 2000. The pur‐ decades. pose of this joint labor‐management initiative was to examine and redes‐ Sexual Harassment ign every process and system used by the agency in fulfilling it legisla‐ In the first of several significant de‐ tive mandate to identify, remedy and cisions issued in this decade, in 2000 eliminate all manner of unlawful dis‐ the Ohio Supreme Court held in criminatory practices. Hampel v. Food Ingredients Special­ ties that harassment on the basis of After intensive examination and sex was a prohibited form of sex dis‐ analysis, the Commission imple‐ crimination. In doing so, the Court mented its redesigned (and stream‐ approved the two general theories lined) investigative process. Com‐ for establishing sexual harass‐ monly referred to as “The Task Force ment—quid pro quo and hostile Initiative,” this process uses a team work environment. concept to evaluate the merits of a discrimination charge before the in‐ The Court further held that men as vestigation is even commenced. well as women were protected from This preliminary evaluation allows sexual harassment in the workplace, the OCRC to expend only the amount even when the harasser was also a of time and resources necessary to man. Moreover, harassing conduct that is simply abusive, with no sex‐ The Farmers Insurance ual element, can still support a claim Case for hostile environment sexual har‐ assment if it is directed at the victim In 2001, the Ohio Civil Rights Com‐ because of his or her sex. mission entered into the largest housing discrimination settlement “There are many, often overlap­ up to date when it settled a case ping, motivations for sex­ against Farmers Insurance Company ual harassment in the workplace, for 4.3 million dollars. The Commis‐ any one of which can be mani­ sion alleged that Farmers Insurance fested in conduct as varied and used insurance underwriting poli‐ multiform as human behavior it­ cies that, in effect, discriminated self. Not surprisingly, abusive sex­ against minority homeowners and based conduct is frequently non­ minority neighborhoods. These sexual or facially neutral in con­ policies included denying better in‐ tent or appearance. Any presump­ surance coverage to older homes tion that discriminatory conduct and homes with low fair market val‐ based on sex will necessarily an­ ues, which resulted in a negative and nounce itself as such would not disproportionate impact on minority only be unwise, but would create homeowners and minority a means to circumvent the very neighborhoods. G. Michael Payton, statutory prohibition against it. Executive Director stated that The wisdom of rejecting a rule “insurance companies cannot have that excludes consideration of so­ policies that exclude customers called nonsexual instances of har­ based on their race or the racial assment is reflected not only in composition of their neighborhood.” the fact that courts generally re­ fuse it, but also in the broad Under the terms of the settlement, range of behaviors that comprise Farmers Insurance agreed to ad‐ the sexual harassment claims in vance 1 million dollars in grants and those cases.” 2 million dollars in low‐interest loans for community‐based pro‐ Justice Alice Robie Resnick, grams to build, repair, improve, or remodel dwellings throughout Ohio, This forum was attended by over as well as pay other damages and 140 executives and human resources fees. Farmers Insurance also agreed professionals from Ohio and Michi‐ to adopt a fair‐housing training pro‐ gan, all of whom had gathered to gram, to state its commitment to hear about creative and workable equal opportunities for insurance in programs and solutions in address‐ its promotional materials, and to in‐ ing diversity issues and concerns. crease marketing and advertising in Several CEOs and other top execu‐ predominantly minority communi‐ tives provided insightful information ties throughout Ohio. reflecting the highlights and suc‐ cesses of their respective diversity A Process for Diversity programs. One of the key speakers In partnership with the Michigan at this forum described it as Department of Civil Rights and the “proactive approach that is very U.S. Equal Employment Opportunity meaningful to the business commu‐ Commission, the Ohio Civil Rights nity,” further stating that he was en‐ Commission hosted “A Process for couraged by this kind of educational Diversity,” the agency’s first forum outreach program. on best practices. The purpose of In 2003, the Ohio Civil Rights Com‐ this forum was to recognize those mission sponsored a fair housing businesses valuing and promoting conference entitled “The Midwest diversity in their organizations on a Fair Housing Summit: A Call to daily basis. Ohio.”

Best Practices Forum, 2003 The Fair Housing Summit, 2003 Over 200 participants from across The Diversity Bear the country traveled to Ohio to at‐ tend this two‐day conference. After decades of work directed to‐ ward spreading the message of valu‐ They keynote address was delivered ing diversity amongst Ohio’s school‐ by Carolyn Y. Peoples, Assistant Sec‐ children, the Ohio Civil Rights Com‐ retary for the U.S. Department of mission introduced the newest Housing and Urban Development. member of its education staff, the She emphasized her agency’s com‐ Diversity Bear. mitment to increase homeowner‐ ship, particularly for minorities, and The Diversity Bear will assist in pro‐ highlighted other fair housing initia‐ moting Commission’s educational tives. program, “Valuing Diversity: Learn‐ ing and Living Together,” as staff The conference also provided nu‐ members visit elementary schools merous workshops on such varied throughout the state. This program topics as accessible design and con‐ is designed to teach students to live struction, insurance redlining, and work in a society inclusive and predatory lending and the use of respectful of differences. credit scoring in the homeowners insurance industry.

That same year, the Commission also held a series of community forums entitled “Know Your Rights” in part‐ nership with the Columbus Urban League, the Columbus NAACP and the Columbus Community Relations Commission. The focus of these fo‐ rums was discrimination in places of The Diversity Bear, Commissioners public accommodation and preda‐ and Governor Bob Taft tory lending.

Promoting Good Credit and National Recognition of the Homeownership Mediation Program

In 2005 the Ohio Civil Rights Com‐ The Ohio Civil Rights Commission’s mission and the Ohio Commission mediation program continues to on Hispanic/Latino Affairs spon‐ play a key role in the agency’s efforts sored a series of community train‐ to effectively and efficiently resolve ings for Ohio’s Hispanic/Latino lead‐ hundreds of discrimination charges ers and service providers entitled each year. Recognizing the accom‐ “Promoting Good Credit and Home‐ plishments of the its mediation pro‐ ownership.” The trainings will begin gram, the Commission was invited to in April, during National Fair Hous‐ participate in a national conference ing Month, and run through May in sponsored by the U.S. Equal Employ‐ Columbus, Cleveland, Lorain, ment Opportunity Commission for Youngstown, Toledo and Dayton. the specific purpose of providing guidance to other state civil rights The trainings, held in Columbus, agencies in developing programs Cleveland, Lorain, Youngstown, providing mediation and other Toledo and Dayton, focused on fair forms of dispute resolution. housing rights, understanding credit and debt, and preparing for home‐ Likewise, in 2005 the Ohio Civil ownership. The trainings were con‐ Rights Commission became one of ducted by local consumer credit only a handful of state civil rights counseling organizations, commu‐ agencies that contracts with the fed‐ nity advocacy groups, as well as per‐ eral government to mediate cases sonnel from the Commission and its filed with the U.S. Equal Employ‐ partner agency, and were designed ment Opportunity Commission. to provide the attendees with vital information and resources to assist The Office of Special Inves­ their members and constituents on tigations how to avoid predatory lending practices and make good credit deci‐ In 2001, the Ohio Civil Rights Com‐ sions. mission re‐energized its enforce‐ ment efforts with the establishment Another equally controversial case of the Office of Special Investiga‐ involved a restaurant owner who tions. This office was created to placed a sign in his window stating oversee novel, complex, controver‐ “For Service Speak English.” Surpris‐ sial and systemic cases of discrimi‐ ingly, this matter spurred a disturb‐ nation. Over the next several years, ing number of hate mail, much di‐ this office undertook investigations rected against persons who do not into some of the most monumental speak English or for whom English and complex cases to come before was a second language. the agency.

One particularly controversial case involved a discriminatory job adver‐ tisement on a website operated by the Vanguard News Network, a hate/ extremist group. The website, over‐ run with racial and ethnic slurs and other expressions of intolerance, posted an advertisement that read, “Racially conscious, master‐degreed, white male… seeks position where Sign displayed at the Pleasure Inn he can think non‐PC thoughts . . . restaurant, 2005 Cleveland, Ohio, area but will highly consider relocation.” The investigation determined that, in light of the clear illegality of out‐ The Commission self‐initiated an in‐ right refusal to serve, a restaurant vestigation of the advertising prac‐ which wishes to discourage minority tices on this website, concluding customers must resort to more sub‐ that, while this “so‐called” news or‐ tle efforts to dissuade . . . efforts such ganization had the right to espouse as slow service, discourteous treat‐ hatred and bigotry, it did not have ment, harassing comments and ges‐ the right to perpetuate or facilitate tures, or in this particular case a discriminatory employment prac‐ sign. The sign, and its message con‐ tices. ditioning service on language, had the purpose or effect of discouraging “Discrimination is a subtle prac‐ patrons from entering on the basis tice, one prevalent throughout our of national origin. Ultimately, the society, but often difficult to de‐ restaurant owner agreed to remove tect. With the problems of preda‐ the sign. tory lending and insurance redlin‐ ing in our communities, racial dis‐ Of the cases handled by the Office of crimination and sexual harass‐ Special Investigations, however, ment in our workplaces, religious none better epitomized the en‐ and ethnic intolerance in our schools, and accessibility for per‐ trenched, institutionalized nature of sons with disabilities in housing discrimination than the case that and places of public accommoda‐ arose outside of the City of Zanes‐ tion, continually improving and ville. Numerous residents living just refining our investigative and en‐ outside the city limits complained forcement techniques becomes all that they had been denied the privi‐ the more important.” lege of public water service because Aaron Wheeler, Sr., Chairman 2004 they are Black and reside in pre‐ dominantly Black neighborhoods. After an extensive investigation, the Surveying New Problems of Office of Special Investigations de‐ Discrimination termined that three public water au‐ thorities were responsible for deny‐ During this decade, the Ohio Civil ing water service to these residents. Rights Commission refocused its ef‐ Following this determination, the forts on studying the problems of City of Zanesville began a public discrimination. In 2003, the agency works project to provide water ser‐ oversaw a study of the use of indi‐ vices to the neglected areas. Today vidual credit scores to determine the these residents have running water. cost and availability of homeowner’s In addition, a subsequent fair hous‐ insurance. Insurance companies in ing lawsuit resulted in a jury verdict the state had increasingly used con‐ of over 11 million dollars in dam‐ sumer credit information – in the ages for these residents. form of insurance credit scoring – to determine if they will offer a con‐ and standards of practice. sumer a residential property insur‐ In 2007, the Commission conducted ance policy and how much to charge a similar study, this time examining for the policy offered. the growing use of consumer credit Based upon the information ana‐ report information to screen appli‐ lyzed in the study, it was determined cants for employment. The purpose that that insurers’ use of insurance of this study was to examine the credit scoring for underwriting, rat‐ manner and frequency that employ‐ ing, marketing and payment plan eli‐ ers were using credit scores, gibility very likely has a disparate whether the use of credit scores had impact on poor and minority popu‐ a disparate impact on minorities, lations in Ohio. Consequently, the and whether there existed any cor‐ use of insurance credit scoring relation between a person’s credit makes insurance less available and history and their job performance. more expensive for poor and minor‐ In particular, the Commission was ity populations in Ohio. concerned that relying on a person’s credit score places minorities at a As a result of the work done by the significant disadvantage when seek‐ Commission, the Ohio Department ing employment or other promo‐ of Insurance issued new regulations tional opportunities. on the use of insurance credit scor‐ ing. Among other things, these regu‐ The results of this study revealed lations prohibit any insurer from us‐ that consumer credit reports were, ing a credit score as the sole basis indeed, a common tool used by em‐ for determining whether insurance ployers when screening applicants would be made available or rate to for employment. Upwards of 60% of be charged for insurance. The rates employers request background and rating plans using credit scores, checks that include reviewing an ap‐ in addition, must establish that plicant’s consumer credit report. credit scores used in underwriting More troubling, however, was the or rating determinations are valid finding that reliance on consumer risk characteristics and are used in credit reports in making hiring deci‐ accordance with actuarial principles sions is likely to have a disparate im‐ tablished between credit ratings and

job performance. “The Ohio Civil Rights Commis­ sion must and will remain stead­ Based upon the findings of this fastly opposed to any effort to study, the Ohio Civil Rights Commis‐ limit, restrict or repeal those sion issued policy guidance to em‐ rights afforded to every Ohioan to be free from all forms of invidious ployers on the practice of using of discrimination in the workplace, consumer credit report information and to seek full and complete re­ in screening applicants. The Com‐ dress for the injuries suffered at mission advised employers that, in the hands of bigotry, prejudice light of the disparate impact that and intolerance. There is no such a policy has minority job appli‐ doubt in my mind that this duty— this clear moral responsibility— cants and employees, consumer runs through the heart and spirit credit report information should not of the Ohio Civil Rights Act, and be used to screen applicants or make that anything short of steadfast other employment‐related decisions opposition is not only wholly un­ except when job‐related and based acceptable, but also a betrayal of upon a legitimate, and objectively those who fought so long, and verifiable, business necessity. sacrificed so much, to make equal employment opportunity a reality Racial Harassment in in this state.” Housing, Retaliation and Aaron Wheeler, Sr., Chairman 2005 Standing

In what could only be viewed as a pact on African‐American and other serious setback in the Ohio Civil minority job applicants. The study Rights Commission’s fair housing concluded that there existed a sub‐ enforcement efforts, in 2008 the stantial and disturbing racial dispar‐ Ohio Supreme Court held in Ohio ity with respect to who has “good” Civil Rights Commission v. Akron Met­ and who has “bad” credit. Making ropolitan Housing Authority that a the finding of a racial disparity even landlord may not be held liable un‐ more troubling, however, was the der the state’s fair housing law for fact that no correlation could be es‐ failing to take corrective action This decision, however, makes it against a tenant whose racial harass‐ very difficult in most cases for a for‐ ment of another tenant created a mer employee to prove that the em‐ hostile housing environment. While ployer filed a lawsuit for retaliatory a landlord has the ability to evict reasons in violation of R.C. 4112.02 tenants, the Court nonetheless con‐ (I). As the dissenting opinion in that cluded that the power of eviction case explained, because a sham law‐ alone is insufficient to hold a land‐ suit is objectively baseless in the lord liable for a tenant’s harassing sense that no reasonable litigant actions against another tenant. could realistically expect success on the merits, it is difficult to see how Along the same lines, in what could any lawsuit filed by an employer only be viewed as a serious setback who successfully defended a dis‐ for all victims of employment dis‐ crimination action falls within that crimination, in 2007 the Ohio Su‐ category. The dissent concluded preme Court in Greer­Berger v. Te­ that this is a loose standard that will mesi made it easier for respondents encourage employers to sue those to bring legal action against a person employees who do not prevail on who opposes discrimination. The discrimination claims, a result that Ohio Supreme Court held that when weakens the protection given under an employee claims that an em‐ the statutes. ployer's suit against the employee was filed in retaliation, the employer In another troubling case decided in must be afforded the opportunity to 2008, Chance v. Fair Housing Advo­ demonstrate that the suit is not ob‐ cates Association, the Ninth District jectively baseless. Moreover, so long Court of Appeals held that private as the employer’s lawsuit raises fair housing organizations lacked genuine issues of material fact, standing to file claims under the meaning the lawsuit is not “sham state’s fair housing law. Despite the litigation,” that lawsuit will be per‐ fact that the standing of these mitted to proceed in court (while the groups is well‐established under proceedings before the OCRC are federal law, this appellate court stayed). reached a contrary conclusion. In doing so, it reasoned that Ohio Gen‐ eral Assembly could have provided for enforcement of the state’s fair housing law by private enforcement agencies, and that decision not to do so meant that there is no need for private fair housing enforcement in Ohio.

Together, these and several other ad‐ verse court decisions once again put into jeopardy the status of the state’s fair housing law as substantially equivalent to federal law, and once again threatened the state’s eligibil‐ ity for federal funding. At the time of this writing, legislative action to remedy these decisions is ongoing.

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