Unanimous Supreme Court: OCRC Must Issue Subpoena Requested by Employer During Preliminary Investigation.

In late March, a unanimous Ohio Supreme Court ruled that Ohio Revised Code § 4112.04(B) requires the Ohio Civil Rights Commission to issue a subpoena requested by an employer during the OCRC’s preliminary investigation. In doing so, the Court invalidated OCRC Rule, Ohio Administrative Code 4112-3-13(B), for conflicting with the controlling statute. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., Slip Opinion No. 2008-Ohio-1261 (3/26/08).

The case arose because an American Legion Post was notified by the OCRC that a former employee had filed a Charge claiming to have been sexually harassed and then fired for complaining. The Post asserted that the Claimant had been fired after it received an anonymous letter alleging that the Claimant was a convicted felon. The Post requested the OCRC to issue a subpoena to the Claimant’s parole officer so that it could inspect her criminal and probation records to prove a non-discriminatory/retaliatory reason for firing her. The OCRC declined to issue a subpoena on the Post’s behalf, and instead, issued a subpoena on its own behalf and reviewed the records itself. The OCRC declined to permit the employer to review the subpoenaed records and issued a probable cause finding that the Post had probably committed an unlawful discriminatory practice. When conciliation failed, the OCRC instituted formal proceedings against the Post.

In the meantime, the Post initiated mandamus proceedings in court against the OCRC for refusing to issue the requested subpoena. The trial court granted the OCRC’s motion to dismiss. However, that decision was reversed on appeal. As mentioned, the Supreme Court affirmed the reversal on the grounds that the OCRC was required by statute to issue the requested subpoena.

Insomniacs may read the decision in full at http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1261.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.