Ordinance 81-21
Frost Brown Todd LLC
To: Dublin City Council
From: Jennifer Readler, Law Director
Jesse Shamp
Date: November 9, 2021
Re: Consideration of a Non-Discrimination Ordinance
UPDATE FOR SECOND READING
The version of Ordinance 81-21 before you for the second reading includes the amendments
proposed by Equality Ohio in the document provided to Council. The Law Department reviewed
the language and agrees that the amendments are reasonable and in keeping with the vast majority
of similar ordinances passed by local jurisdictions.
BACKGROUND AND QUESTION PRESENTED
Multiple Central Ohio municipalities have enacted local non-discrimination ordinances, and
municipalities in other areas of the State have considered them as well. Columbus has a local non-
discrimination ordinance dating back to 1994, while Bexley adopted its own in 2015. In May 2019,
Worthington adopted a non-discrimination ordinance and Westerville did the same in November
2019. Hilliard debated similar legislation beginning in September 2020 and approved an ordinance
in June 2021. Upper Arlington amended its existing city code in July 2021 to expand the definition
of protected classes and adopt a complaint procedure providing for an administrative hearing.
Advocates for such ordinances have argued that, in addition to altruistic benefits, they provide
economic benefits by signaling to companies with diverse workforces that the community will
welcome their prospective employees. Advocates also claim that state and federal laws and
regulations do not provide adequate protection for certain classes of people. These ordinances must
be carefully drafted to address legitimate exceptions and procedural rights.
Historically, Dublin has actively worked to combat racism and inequality. City Council passed
Resolution 86-15, rejecting discrimination of any kind and urging the Ohio General Assembly to
consider legislation to ensure equal opportunity and respect for all people. Additionally, the City
Manager signed Administrative Order 2.66, specifically prohibiting discrimination within the
work environment of the City of Dublin. In 2017, Dublin City Council built upon this strong
foundation by passing Resolution 37-17 to combat intolerance, negative stereotyping and
discrimination based on religion, belief or ethnicity. City Council then passed Resolution 37-20,
condemning racism, declaring that Black Lives do matter, and pledging to combat injustice and
inequity.
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COMMUNITY TASK FORCE – DIVERSITY, EQUITY AND INCLUSION
FRAMEWORK AND RECOMMENDATIONS
On August 16, 2021, the Community Task Force presented its Diversity, Equity and Inclusion
(DEI) Framework and Recommendations to City Council. As part of those Recommendations, the
Task Force urged Council to adopt a comprehensive non-discrimination ordinance that prohibits
housing, public accommodations and employment discrimination on the basis of sexual
orientation, gender identity or gender expression, in addition to the classes already protected by
state and federal law—race, sex, color, religion, ancestry, national origin, age, disability, familial
status, marital status, and military status.
SUMMARY CONCLUSION
The City has home-rule authority to adopt a local non-discrimination ordinance including statuses
that are not protected by state or federal statute. The City also has authority to establish an
administrative remedy for complaints. The administrative remedy has benefits over criminal
prosecution in mayor’s court or municipal court, but improvements over existing models are
advisable to create an efficient process that would be defensible on administrative appeal.
LAW AND ANALYSIS
Local non-discrimination ordinances must comply with the powers afforded to municipalities by
the Ohio Constitution, as well as generally applicable limitations on governmental action within
the Ohio and U.S. Constitutions. The constitutional provisions typically implicated include rights
to due process, in relation to local procedures implemented to enforce the ordinance; the right to
free exercise of religion, which has been cited by individuals who argue that their religious beliefs
prohibit accommodation to individuals expressing LGBTQ+ identities in certain contexts; the right
to free speech, which has been cited by individuals who argue that such ordinances chill speech
that may be at-odds with the ordinances’ requirements (such as in religious hiring or membership
policies); and the right of expressive association, cited to argue that such ordinances require
association with protected individuals.
A. Home Rule Considerations
Under the Home Rule Amendment, Ohio Constitution Article XVIII, Section 3, the City of Dublin
has powers of local self-government and to enact local measures under its police powers to protect
the general health, safety, and welfare as are not in conflict with general laws of the State. A
“general law” must “(1) be part of a statewide and comprehensive legislative enactment, (2) apply
to all parts of the state alike and operate uniformly throughout the state, (3) set forth police,
sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a
municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule
of conduct upon citizens generally.” City of Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005,
766 N.E.2d 963, syllabus. A conflict exists only if the local law forbids what a statute permits, or
vice versa, such that the local ordinance and the general State law issue contrary directives.
Mendenhall v. City of Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, ¶ 29.
Local non-discrimination ordinances typically have two components: (1) a rule of conduct; and
(2) a procedure addressing violations of that rule of conduct. The first component is a police-power
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regulation that cannot conflict with general laws of the State. The conflict question is answered
through the test articulated in Canton. The second component is an exercise of the power of local
self-government, and so no conflict analysis is necessary.
Ohio law prohibits discrimination on the basis of race, color, religion, sex, military status, national
origin, disability, age, or ancestry. R.C. §4112.02. In the housing context, Ohio law also prohibits
discrimination on the basis of familial status. Id. Ohio law does not include non-discrimination
provisions relative to statuses such as sexual orientation, or gender identity or expression. Ohio’s
lack of statutory protections for these statuses does not create a conflict with ordinances that
include such protections, because the lack of protections does not affirmatively allow
discriminatory conduct based on these statuses. In the absence of contrary directives,
municipalities are free to legislate a rule of conduct prohibiting discrimination on the bases of
sexual orientation and gender identity or expression within their municipal borders.
The local non-discrimination ordinances that have been adopted typically include an
administrative remedy, rather than a criminal remedy that would be prosecuted through Mayor’s
Court or Municipal Court. Ohio municipalities have home-rule authority to establish pre-suit
administrative remedies and procedures. Walker v. City of Toledo, 143 Ohio St.3d 420, 2014-Ohio-
5461, 39 N.E.3d 474, ¶ 29. The apparent rationale for the administrative approach municipalities
have taken is that the Ohio Civil Rights Commission has jurisdiction over claims relating to
discrimination based upon protected statuses in the Revised Code, and that municipalities do not
have authority to create private civil causes of action in the state court system.
The choice not to have a criminal remedy for the act of discrimination itself is a policy choice.
One rationale for this choice is the procedural safeguards that attach when a person has been
accused of a criminal act, which include the requirement of proof beyond a reasonable doubt,
confrontation of accusers, and the presumption of innocence. By making the remedy for violating
the non-discrimination ordinance non-criminal, a person who fails to answer a complaint may be
found in violation by default, for example, whereas a person who fails to answer a criminal charge
is subject to bench warrant or sanctions to their driver’s license, but the merits of the charge remain
unresolved indefinitely.
In summary, the City has authority under the Home Rule Amendment to establish an ordinance
prohibiting discriminatory conduct on bases including sexual orientation, gender identity or
expression and to create an administrative remedy for violations of that rule of conduct.
B. Existing Federal and State Protections.
The federal Civil Rights Act and the Federal Fair Housing Act expressly prohibit discrimination
on the basis of race, color, national origin, religion, sex, familial status, and disability. However,
federal case law at both the Supreme Court and Sixth Circuit have interpreted that language to
include more expansive definitions.
In Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the Supreme Court held that the
prohibition on discrimination based on “sex” extended to sexual orientation and gender identity,
at least in the employment context. This interpretation means that while federal employment laws
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still do not include “sexual orientation” and “gender identity” as protected classes, they are
nonetheless protected under the umbrella of discrimination on the basis of sex.
In a 2004 case before the Sixth Circuit Court of Appeals, which includes Ohio, the court held that
Title VII of the Civil Rights Act prohibited discrimination based on gender identity. Smith v. City
of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). More recently, the Sixth Circuit found an employer’s
decision to fire a transitioning, transgender employee was gender discrimination under Title VII
and therefore unlawful. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir.
2018).
As discussed, Ohio law prohibits discrimination based on race, color, religion, sex, military status,
national origin, disability, age, and ancestry. It does not prohibit discrimination based on sexual
orientation, gender identity, or gender expression and there has not been any state court case law
analogous to the federal cases which read the definition of “sex” to also include those categories.
C. Other Constitutional Considerations: Due Process, Free Exercise, Free Speech, Expressive
Association.
In April 2019, the Lyceum, a Catholic college preparatory school in South Euclid, near Cleveland,
sued the City of South Euclid in the U.S. District Court for the Northern District of Ohio due to
the LGBTQ+ provisions in South Euclid’s non-discrimination ordinance.
The local non-discrimination ordinances that have passed in Central Ohio provide basic procedural
due process for those that are subjects of discrimination complaints: notice of the accusation, and
a meaningful opportunity to be heard before a neutral decision maker. Non-discrimination
ordinances must also provide sufficient definition of their expectations to avoid being “void for
vagueness”; the void-for-vagueness doctrine “bars enforcement of ‘a statute which either forbids
or requires the doing of an act in terms so vague that [people] of common intelligence must
necessarily guess at its meeting and differ as to its application.’” U.S. v. Lanier, 520 U.S. 259, 266
(1997), quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
The Lyceum premised one of its counts against South Euclid on the void-for-vagueness doctrine,
claiming that the city’s ordinance did not clearly define gender identity or expression.1 The City
of Worthington delayed its vote on its proposed ordinance following the Lyceum’s suit and had
the opportunity to amend the ordinance to reduce the risk of a suit on similar grounds.
Worthington’s ordinance provides further definition to the term “gender identity or expression”
based upon a Connecticut state law and language recommended in other jurisdictions by the
ACLU. The draft ordinance you will review uses very similar language because it meets the bar
set by this previous court action.
1 The Lyceum also alleged that the ordinance’s prohibition against public accommodations advertising that a person’s
presence is “objectionable, unwelcome, unacceptable, or undesirable” to the proprietor due to a protected status of the
person was void for vagueness. The Lyceum argued it would have had to guess as to what statements might indicate
that a person’s presence is “objectionable, unwelcome, unacceptable, or undesirable.” Worthington’s May 2019
revisions did not address the analogous provision in its ordinance, likely because this void-for-vagueness claim goes
beyond what current law would consider unlawfully vague—the void-for-vagueness doctrine requires only fair
warning, not surgical precision in defining all conceivable conduct that the legislature wishes to prohibit.
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Objections raised on grounds of free exercise of religion, expressive association, and freedom of
speech can raise further potential grounds for litigation. Courts generally attempt to draw a line
between conduct, which the government may regulate, and speech, which the government may not
regulate (except in extremely narrow circumstances). Neutral, generally applicable laws may
incidentally burden religious exercise. Employment Div., Dept. of Human Resources of Oregon v.
Smith, 494 U.S. 872, 878–880 (1990). Exemptions to generally applicable laws based on sincerely
held religious beliefs are permissible, and may be desirable, but are not required. Id. at 890. For
example, “while religious and philosophical objections [may be protected in some contexts], it is
a general rule that such objections do not allow business owners and other actors in the economy
and in society to deny protected persons equal access to goods and services under a neutral and
generally applicable public accommodations law.” Masterpiece Cakeshop, Ltd. V. Colorado Civil
Rights Com’n, 138 S.Ct. 1719, 1727 (2018). The Worthington, Bexley, Westerville, and Columbus
non-discrimination ordinances include exemptions for religious organizations, but the
circumstances in which religious exemptions apply differ.
Accordingly, the City may establish generally applicable prohibitions of discrimination on the
basis of a person’s sexual orientation or gender identity or expression. Legal protections of these
statuses have received challenges on the basis of religion, but the risks of such challenges can be
minimized through pragmatic actions. Worthington’s ordinance, for example, includes a religious
exemption allowing religious institutions to favor their adherents in the offering of employment,
housing, and in the offering of goods, services, and accommodations so long as those goods,
services, and accommodations are not being offered for commercial purposes or being supported
by public funds. The exceptions in Worthington’s ordinance address claims such as the
Lyceum’s—which alleged that South Euclid’s ordinance could require it to house and offer
educational services to students, or hire teachers, who differ with Catholic doctrine on sexuality—
while still requiring commercial ventures to apply with the generally applicable ordinance.
D. Categories of Protection and Protected Classes Set Forth in Legislation Adopted by Other
Central Ohio Communities.
Each of the Central Ohio cities that has adopted non-discrimination legislation has focused
attention on three main areas: employment, housing, and public accommodations. Each city has
slightly different language and exceptions to the prohibitions designed to limit exposure to legal
challenges while at the same time effecting meaningful change.
This table provides a quick reference guide for Central Ohio cities, the classes protected in each
community and the enforcement mechanism provided.
City Protected Classes Enforcement Mechanism
Columbus Race, age, sex, sexual orientation, gender
identity or expression, color, religion,
ancestry, national origin, age, disability,
familial status, source of income, and military
status.
The Community Relations
Commission investigates all
claims and refers complaints
to the City Attorney with a
“Probable Cause”
determination.
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Bexley Race, sex, sexual orientation, gender identity
or expression, color, religion, ancestry,
national origin, age, disability, familial status,
source of income, or military status.
Race, sex, color, religion,
ancestry, national origin, age,
disability referred to OCRC;
City can review upon request
after determination of OCRC.
Sexual orientation, gender
expression or identity referred
to voluntary mediation and
then, if unsuccessful,
investigated and prosecuted
by the City Prosecutor in
front of the City Magistrate.
Hilliard Race, sex, sexual orientation, gender identity
or expression, color, religion, ancestry,
national origin, age, disability, familial status,
marital status, and military status.
Race, sex, color, religion,
ancestry, national origin, age,
disability referred to OCRC;
City can review upon request
after determination of OCRC.
Sexual orientation, gender
expression or identity referred
to voluntary mediation and
then, if unsuccessful,
investigated and prosecuted
by the Law Director.
Westerville Race, color, religion, sex, national origin, age,
familial status, disability, pregnancy, sexual
orientation, gender identity or gender
expression, or source of income.
City contracts with Columbus
Community Relations
Commission to conduct
investigation and make a
recommendation to the City
Law Director. Hearing officer
conducts a hearing and issues
final determination, which
may be appealed via ORC
Chapter 2506.
Worthington Race, sex, sexual orientation, gender identity
or expression, color, religion, ancestry,
national origin, age, disability, marital status,
familial status, genetic information, military
status, or source of income.
Race, sex, color, religion,
ancestry, national origin, age,
disability referred to OCRC;
City can review upon request
after determination of OCRC.
Sexual orientation, gender
expression or identity referred
to voluntary mediation and
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then, if unsuccessful,
investigated and prosecuted
by the Law Director in front
of a hearing officer.
Reynoldsburg Race, color, religion, sex, national origin, age,
familial status, disability, pregnancy, sexual
orientation, gender identity or expression,
source of income, or natural hair types and
natural styles commonly associated with race.
Race, sex, ethnicity, national
origin, religion, age,
disability, military status
referred to OCRC.
Law Director conducts initial
investigation of all other
matters to determine whether
probable cause exists to
appoint a Hearing Officer.
Upper
Arlington
Race, color, religion, sex, military or veteran
status, national origin, age, ancestry, familial
status, disability, sexual orientation, gender
identity, or gender expression, or any class of
people designated as a protected class by state
or federal law.
File complaint with Clerk of
Council; City offers to set up
mediation or, if refused,
appoints a hearing officer for
an administrative hearing
where civil damages can be
assessed
LEGISLATION FOR COUNCIL REVIEW
A. Protected Classes and Categories of Protection.
The draft legislation for Council’s consideration enacts Chapter 140 of the Dublin Codified
Ordinances. It designates race, color, religion, sex, national origin, age, familial status, disability,
pregnancy, sexual orientation, gender identity, and gender expression as protected classes. As
discussed above, all of these are already protected classes under state and federal law except for
sexual orientation, gender identity, and gender expression. The legislation provides protections for
these classes in three areas: employment practices, housing accommodations, and public
accommodations. It also includes certain exemptions and exceptions under each category.
This legislation also requires complainants who are alleging violations against classes already
protected by state and federal law to file a complaint with the Ohio Civil Rights Commission or
Equal Employment Opportunity Commission. If either the OCRC or EEOC lacks the resources or
time to investigate the complaint, the complainant may request the City to pursue the investigation.
However, if the OCRC or EEOC finds there was no probable cause for the complaint, the City file
is closed, and no review shall occur.
B. Procedure for Complaints.
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The legislation requires complainants to file a complaint with the City Clerk of Courts and to
include certain information in the complaint (e.g., the conduct at issue, location of the conduct,
and the name of opposing parties). Once received and time-stamped, the Clerk provides copies of
the complaint to the City Manager and Law Director. The legislation requires the City to appoint
an independent, outside counsel to investigate the charges and determine if probable cause exists
for a hearing, or if the case should be dismissed.
If outside counsel determines that probable cause exists after an investigation, the City hires a
Hearing Officer to conduct an administrative hearing. The Hearing Officer has the authority to
issue subpoenas and direct discovery between the parties. After the hearing, the Hearing Officer
issues a written decision to the Law Director and the parties that includes all relevant facts and the
conclusions of law. The Hearing Officer can issue cease and desist orders to the respondent, order
a dismissal of all charges, or can impose up to a $1000 civil fine for a first offense, and up to a
$5000 fine for offenders with multiple offenses within a certain period. A decision of the Hearing
Officer can be appealed to the Franklin County Court of Common Pleas under Ohio Rev. Code
2506.
The draft legislation permits the Hearing Officer to assess the costs of the outside counsel but not
the costs of the Hearing Officer, any attorney fees, or any other damages.
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