Legislation was introduced in the Ohio Senate by Senator Joe Uecker to protect employees who engage in certain off-duty conduct from adverse job actions. At least 29 states and the District of Columbia currently have laws that protect employees to some extent from adverse action based on their off-duty activities. However, most of these jurisdictions protect only employees’ use of tobacco. Other states protect the use of “lawful products,” while about four states protect employees who engage in “lawful activities.” Ohio Senate Bill 180 would be even more all-encompassing and far-reaching.

As currently drafted, Senate Bill 180 would prohibit an employer from discharging without just case, refusing to hire, or otherwise discriminating against a person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, because the person:

• Exercised a constitutional or statutory right within the person’s private real property; or
• Exercised a constitutional or statutory right within a motor vehicle not owned or controlled by the employer, regardless of whether the vehicle is on the employer’s property.

The bill would define a “constitutional or statutory right” as “any right that is prescribed by the Constitution of the United State or this state, including any fundamental right, or that is granted under any statute of the United States or this state.” An adverse job action would be considered an act of “discrimination” under the Ohio Civil Rights Act, and so the full remedies under the Civil Rights Act would apply – compensatory damages, punitive damages, attorney’s fees, litigation costs, and individual liability for supervisors.

There is no definitive list of constitutional or statutory rights for an employer to reference as a guide. “Fundamental rights,” in particular, are an amorphous concept, for they evolve as courts interpret and reinterpret the U.S. and Ohio Constitutions. Typically, fundamental rights are related to a person’s right to autonomy or privacy and currently include, among others, the right to marry and to procreate, the right to birth control, the right to freedom of speech, the right to freedom of association, and the right to freedom of religion.

Sponsor and proponent testimony for Senate Bill 180 have focused solely on permitting an employee to keep a weapon in his or her private vehicle when on the employer’s property. Ohio law currently allows employers to prohibit this. See Ohio Revised Code §2923.16. In his testimony, Senator Uecker mentioned that states like Kentucky allow employees to keep firearms in their vehicles even if parked on their employer’s property. See Kentucky Revised Statutes §527.020 (“Carrying Concealed Deadly Weapon”). But Kentucky’s law only speaks to firearms or other deadly weapons – it says nothing about protecting unidentified “constitutional or statutory rights” like Senate Bill 180. Moreover, Kentucky’s law does not make it an act of “discrimination” to discipline an employee who leaves a firearm in his car at work as Senate Bill 180 does.

Senate Bill 180 will cause unintended consequences for Ohio’s businesses. For example, an employer could not refuse to hire a person because the employer learns that he holds meetings of racist or anti-Semitic groups on his “private real property” (which is within the person’s fundamental right to freedom of speech and association). It is unclear whether this behavior would provide an employer with “just cause” under the Bill to terminate such an employee. This November, Ohio’s voters will decide whether to amend the Ohio Constitution to permit the recreational and medical use of marijuana. This will give Ohioans a constitutional right to use marijuana. So if Senate Bill 180 is enacted, would an employer be prohibited from disciplining or terminating an employee who uses marijuana (which would be exercising a “constitutional right”) in his car while on the employer’s property? Is this really what Senate Bill 180 is intended to do?

In the end, employers considering adverse action against an employee because of the employee’s off-duty conduct on or off the employer’s property would be left to guess whether the conduct falls under a constitutional or statutory right. This exposes employers to considerable uncertainty and significant liability.