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Help for Small Businesses, Part 3: The Administrative Appeal Process

There are various outcomes when a charge of discrimination is brought against a small business and mediation is unsuccessful.
Re-cap of previous articles
In previous issues of the “Civil Rights Reporter,” we’ve discussed what happens when a charge of discrimination is filed against your small business. Once a charge is filed, the commission offers mediation services to the parties.  If mediation services are not used (or are unsuccessful), the investigation begins. You will have the opportunity to explain what happened through a written position statement. During the investigation, you can also provide the commission with witness testimony and supporting documents. If the commission finds “no probable cause” after its investigation, the charge is dismissed. However, if the commission finds probable cause, the parties are then encouraged to reach a resolution through conciliation. If conciliation is unsuccessful, then the commission issues an administrative complaint, holds an evidentiary hearing, and ultimately makes a determination on the merits of the allegations. The next step is the judicial review process, which allows any party to ask a court of common pleas to judicially review a commission final order.
Appeal of No Probable Cause findings
If the commission makes a “no probable cause” finding after its investigation, the charging party can request judicial review of that decision. (See R.C. 4112.06(A).) The court reviews whether the commission’s factual findings supporting its no probable cause decision reveal that decision to be “unlawful, irrational, arbitrary, or capricious.” [See McCrea v. Ohio Civ. Rights Com’n, 20 Ohio App.3d 314, 317 (9th Dist.1984).]
Typically, judicial review of no probable cause decisions will not involve you or your business. The court’s role is to review whether the commission’s “findings of fact show sufficient justification for its decision not to issue a complaint,” rather than to review the charging party’s allegation against you or your business. (See Pease v. Ohio Civ. Rights Comm., 2015-Ohio-1386, ¶ 13 (8th Dist. Cuyahoga).)
Appeal of Probable Cause Findings
If the commission issues a probable cause decision against your business, can you appeal? No, because a probable cause finding is not a final order. (See Ohio Assn. of Pub. School Emp. v. Dayton City School Dist. Bd. of Edn., 59 Ohio St.3d 159, 161 (1990).) As a result, a probable cause decision is not subject to the administrative appeal process. Only after the commission issues a final order can the parties seek judicial review.
Appeal of Dismissal Orders / Cease and Desist Orders
After an evidentiary hearing, the commission will issue a final order, either dismissing the case or finding that unlawful discrimination occurred (and then issuing a cease and desist order).  Either way, the commission’s final order can be appealed to a court of common pleas by filing a “petition” seeking judicial review. (See R.C. 4112.06(B).) The petition must be filed within the county where either 1) the unlawful discriminatory practice was committed, or 2) the business resides or transacts business. (See R.C. 4112.06(A).)
A party has 30 days from the service of the commission’s final order to file a petition for review. (See R.C. 4112.06(H); Ramsdell v. Ohio Civ. Rights Com'n, 56 Ohio St.3d 24, 25 (1990).) Service is complete when the commission mails its final order, and the 30-day time period cannot be tolled or extended through application of the civil rules or the Administrative Code. (See Ramsdell, 56 Ohio St.3d 24, 27.) In short, no “three-day mailing rule” applies here.
When reviewing a final order issued after a commission evidentiary hearing, the court of common pleas applies a “reliable, probative, and substantial evidence” standard of review. (See R.C. 4112.06(E).) This means that if there is some reliable, probative, and substantial evidence in the record to support the commission’s findings, then the reviewing court cannot set the findings aside. This is true even though the court might have drawn “different inferences” from the available evidence. (See Little York Tavern v. Lane, 2017-Ohio-850, ¶ 12 (2nd Dist. Montgomery).)
Would you like to know more?
Anyone interested in knowing more about the OCRC’s administrative process and related appeals can contact the Ohio Civil Rights Commission at 614-466-2785 or the Civil Rights section of Ohio Attorney General Mike DeWine at 614-466-7900.