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CLEVELAND-The city of Cleveland has made employment discrimination a criminal act, and lawyers say the ordinance could be an unnecessary source of headaches and higher legal costs for employers.
The ordinance makes it a misdemeanor to fire, decline to hire or demote someone because of "race, religion, color, sex, sexual orientation, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status." Violators can be prosecuted with a minimum penalty of a $1,000 fine or three months in jail.
The measure, which became effective in December, is designed to prevent discrimination by making people pay for their actions, said Councilman William Patmon, the law's author.
"I believe there should be individual responsibility for your actions," he said. "A person who commits the act becomes responsible for their actions," instead of the corporation. Without the criminal penalty, the Democratic councilman added, only the company faces penalties, and individuals are not deterred from discriminating.
Lawyers that represent employers criticized the ordinance.
"I don't know why anybody wants to criminalize business activity," said James Rydzel, an employment law attorney with Jones, Day, Reavis & Pogue in Cleveland.
Attorneys said existing federal, state and local laws that outlaw discrimination already deter companies and individuals from discriminating.
"I don't think it will significantly deter discrimination," said John B. Lewis, head of the employment and labor practice group for the law firm of Arter & Hadden in Cleveland. "It will be one more thing companies have to worry about and one more weapon in the hands of an employee to achieve what they want in an employment dispute."
"Many ways to remedy these issues exist without trying to criminalize it," Mr. Lewis said.
Mr. Lewis added that contrary to Councilman Patmon's assertion, people are frequently individually liable for their discriminatory acts.
One large question about the ordinance is who will serve the prison sentence. In many employment discrimination cases, no single person is at fault and the company as a whole is punished.
Under this ordinance, prosecution will require singling out individuals for punishment. Other questions are: Would a supervisor be held responsible for the acts of subordinates or should the subordinates be prosecuted? Also, would all people be prosecuted who knew of the actions that create a hostile work environment or just one? These questions will take years of litigation to answer, the attorneys said.
Although no one has been prosecuted under the law yet, Mr. Rydzel predicts the ordinance will drive up the cost of litigating employment disputes. "It will make routine employment disputes a lot more expensive," he said. Before the ordinance, a company could end the dispute by settling with the plaintiff. But now the case could continue if prosecutors become involved. As a result, he added, business will leave Cleveland.
Councilman Patmon disagrees. "The business that leaves Cleveland because it wants to discriminate we don't want in Cleveland anyway," he said.