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Fighting Sexual Orientation Discrimination in Ohio Workplaces

Cleveland, Ohio Sexual Orientation Discrimination Employment Lawyers

pride flagThroughout the nation, laws are moving slowly but invariably towards greater protections for LGBT citizens. Unfortunately, LGBT employees still do not have protection from sexual orientation discrimination in many workplaces, particularly in Ohio. But there are some protections. And recent case law offers some hope for fuller protection on the horizon.

There is a growing social and legal trend towards prohibiting sexual orientation discrimination in the workplace. According to a study by the Human Rights Campaign, 92% of Fortune 500 companies include sexual orientation in their anti-discrimination policies. Twenty-two states and the District of Columbia now ban private employers from discriminating on the basis of sexual orientation. Twenty of those states and D.C. ban gender identity discrimination as well, providing protection for private-sector transgender employees. On the local level, many cities across the nation, including all the large cities in Ohio, have ordinances prohibiting sexual orientation discrimination.

Despite this trend, neither federal nor Ohio employment discrimination statutes explicitly ban discrimination on the basis of sexual orientation. Repeated legislative attempts to add such a protection to the statutes have failed. Citing the lack of a clear statutory ban, courts have held that private employers in Ohio can fire LGBT employees for not being heterosexual. Shocking as that may seem, it has held true even for the proverbial employer who explicitly tells an employee “you’re fired because you’re gay.”

Protecting the rights of LGBT employees in Ohio

Yet things may not be as bleak as they seem for LGBT employees. There are some legal options for Ohio employees who suffer workplace discrimination because they are not heterosexual.

Public sector LGBT employees in Ohio have a critical potential ally on their side: the United States Constitution. Courts have held that the Equal Protection Clause of the U.S. Constitution protects public employees in Ohio from sexual orientation discrimination.

For private sector LGBT employees, fighting workplace discrimination is somewhat harder. The Constitution provides no protection against employment discrimination by private employers. Employees must therefore look elsewhere for potential vindication. There are a few places to look though.

Ironically, the first place to look may be right back to Title VII, the central federal employment discrimination law. In 2015, the U.S. Equal Employment Opportunity Commission—the federal agency tasked with interpreting federal employment discrimination law—announced it would start interpreting the ban on “sex” discrimination in Title VII to also include “sexual orientation” discrimination. Although that position seemed like a long-shot at first, two federal courts of appeals have now adopted it.

In a ground-breaking 2017 decision, the Seventh Circuit Court of Appeals became the first federal court of appeals to hold that Title VII bans sexual orientation discrimination, in a case called Hively v. Ivy Tech. In February 2018, the Second Circuit Court of Appeals followed suit in a case called Zarda v. Altitude Express, Inc. Until these two cases, federal courts of appeals had consistently rejected claims of sexual orientation discrimination brought under Title VII. One of those courts is the Sixth Circuit, which has jurisdiction over Ohio. It seems likely the Supreme Court will soon resolve the issue.

Title VII “sex stereotyping” claims might protect gay and lesbian employees in Ohio.

Title VII offers another potential avenue of protection, arising from the Supreme Court’s 1989 decision in Price Waterhouse Coopers v. Hopkins. The plaintiff in that case was denied a promotion because her employer considered her too “macho.” The Supreme Court held that Title VII bars employers from making decisions on the basis of “stereotypes” about the way men and women should act because that is discrimination on the basis of sex. Following Price Waterhouse, gay and lesbian employees have successfully sued their employers under Title VII, claiming they were discriminated against—not because of their sexual orientation—but because they do not conform to traditional gender norms.

equality for LGBT employees

Whether these “sex-stereotyping” claims succeed has depended on both careful pleading and the mannerisms or appearance of the employees at issue. Two cases from the Sixth Circuit offer an illustrative contrast.

In Smith v. City of Salem, the Salem, Ohio Fire Department suspended a transsexual lieutenant after he began expressing a feminine appearance in line with his diagnosed Gender Identity Disorder. Reversing the district court’s dismissal of the complaint, the Sixth Circuit held that the plaintiff sufficiently stated a claim of sex-stereotyping because he alleged he was discriminated against for “his failure to conform with sex stereotypes about how a man should look and behave. . . .”

The plaintiff in Vickers v. Fairfield Medical Center was not quite so successful. The plaintiff, a private police officer, was harassed by co-workers after befriending a homosexual doctor at the hospital where he worked. Among other things, his co-workers called him “gay” and “fag,” and wrote gay slurs on his report forms. The plaintiff tried to bring a sex-stereotyping claim but the Sixth Circuit rejected it. The Court held that the complaint was more properly viewed as one of harassment based on perceived homosexuality rather than gender non-conformity. It noted in particular that the plaintiff’s argument did not allege any failure to conform with traditional gender norms that would be “observable in the workplace,” rather than in the privacy of the bedroom. The Court then held that accepting an employee’s sexual practices as the actionable non-conforming behavior would effectively permit all claims of sexual orientation discrimination because “homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” It is worth noting, however, that this case long predates the EEOC’s 2015 announcement, not to mention the Hively and Zarda decisions.

Of course, a sex stereotyping claim will not provide meaningful relief for many LGBT employees. First, the claim will avail only those who do not conform to traditional gender norms. Those who do conform, but are discriminated against nonetheless, are out of luck. Second, because notions about male and female behavior often blur into notions about sexuality, the distinction between a sex-stereotyping claim and a sexual orientation claim can be difficult to discern. As evidenced in Vickers, courts have typically been wary of bootstrapping. Absent careful pleading, a sex-stereotyping claim may well be dismissed.

Contact an employment discrimination law to learn about your rights

Title VII aside, Ohio LGBT employees might also consider turning to a local ordinance prohibiting sexual orientation discrimination, if they work in a city that has one. Unfortunately, these ordinances do not themselves create a civil remedy for an aggrieved employee. Though relatively toothless on their own, they may still aid LGBT employees in fighting discrimination. Ohio has a catch-all claim for wrongful discharge in violation of public policy. At least one federal court has held that LGBT employees in Ohio may bring wrongful discharge lawsuits alleging sexual orientation discrimination based on the public policy contained in a local anti-discrimination ordinance.

Despite the growing social and legal trend towards workplace equality, obstacles remain. Although there are are some options for LGBT employees who suffer employment discrimination, prevailing on these claims can be extremely difficult. To maximize the chances of success, employees should hire an experienced Ohio employment discrimination attorney.

If you believe you have been the victim of sexual orientation discrimination at work, the employment lawyers at Bolek Besser Glesius might be able to help. Contact us today.