On December 18, 2014, the United States Department of Justice announced it would begin taking the position that federal employment discrimination law protects employees from discrimination on the basis of gender identity. The announcement represents a shift in policy that means transgender employees in Cleveland, and throughout Ohio and the U.S., have a new and important ally in fighting workplace discrimination.
For those unfamiliar with the term, “gender identity” is essentially a person’s internal sense of being male or female, regardless of biological sex at birth. Having a gender identity different from biological sex is commonly referred to as being transgender.
Found at 42 U.S.C. § 2000e-2, the central federal employment discrimination law, Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of an employee’s “race, color, religion, sex, or national origin.” You do not have to be all that careful of a reader to note that sexual orientation, gender identity, or transgender status are not on the list of protected characteristics. For more than the past decade, repeated attempts have been made in Congress to amend Title VII to include a ban on sexual orientation or gender identity discrimination through a bill called the Employment Non-Discrimination Act. Each of those attempts has failed. Similarly, many employees have tried over the years to bring sexual orientation discrimination claims under Title VII. These plaintiffs have argued that sexual orientation discrimination falls within the ban on discrimination because of “sex.” They have not been successful. Thus, it is clear that Title VII does not protect employees from discrimination on the basis of sexual orientation. Although twenty-one states and the District of Columbia have passed laws prohibiting workplace sexual orientation discrimination, Ohio is not one of them.
LGBT employees have had some successes under federal employment discrimination law however. In a 1989 case called Price Waterhouse v. Hopkins, 490 U.S. 228 (1998), the Supreme Court held that Title VII’s ban on sex discrimination in employment protects individuals who are discriminated against for failing to conform to “traditional” gender norms and stereotypes about how men and women should act, dress, talk, or behave. For instance, an employer cannot discriminate against a female employee—regardless of sexual orientation—for being too “manly.” In the wake of the Hopkins case, some LGBT employees began bringing discrimination claims under Title VII using what has come to be called a “sex stereotyping” claim. Some of these claims have been successful, including one important case in Ohio called Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
In 2012, the United States Equal Employment Opportunity Commission began taking the position that gender identity discrimination is illegal sex discrimination, even if the person does not outwardly express their internal gender identity. More recently, the President issued an executive order along the same lines, prohibiting discrimination on the basis of gender identity in federal employment and for government contractors. With its recent announcement, the Department of Justice has followed suit. While it is typically the EEOC that pursues employment discrimination cases on behalf of the federal government, the DOJ has authority to do so as well. In light of the recent announcement, it may now begin pursuing employment discrimination claims on the basis of gender identity.
Despite the success of some sex stereotyping claims and the recent positions taken by the federal government, it has to be said that the issue of whether gender identity falls under the sex discrimination ban in Title VII remains far from settled. There is some dispute among the courts on the point, and the issue will likely continue to percolate through the judicial system, and perhaps even up to the Supreme Court. Candor requires me to admit that it is very uncertain whether the Supreme Court would agree with the EEOC and DOJ position. Whatever the development of the law in this area, there is certainly a very strong moral case for not letting people be discriminated against at work because of their gender identity. Unfortunately, employment discrimination law does not always deal in moral and immoral.
Assuming for the sake of argument that courts will take the position that gender identity discrimination is a form of sex discrimination, where does this leave Ohio LGBT employees with respect to their rights in the workplace? Put simply, transgender employees would be protected from employment discrimination. LGBT employees who fail to conform to traditional gender norms would also be protected from discrimination. But gay and lesbian employees who do conform to traditional gender norms would still not be protected from employment discrimination on the basis of sexual orientation, at least not in the private sector.
I say not in the “private sector” because public employees do have some protection from sexual orientation discrimination. Various federal executive orders protect LGBT employees who work for the federal government from discrimination on the basis of sexual orientation. Public sector employees might also be protected from sexual orientation discrimination under the Equal Protection Clause of the Fourteenth Amendment. One significant case holding as such came from right here in Cuyahoga County. In Hutchinson v. Cuyahoga County Bd. of County Comm’rs, 2011 U.S. Dist. LEXIS 46633 (N.D. Ohio Apr. 25, 2011), the United States District Court for the Northern District of Ohio held that the Equal Protection Clause does in fact protect public employees from sexual orientation discrimination.
It is worth noting that private sector LGBT employees in other states besides Ohio gained a critical employment protection fairly recently. In United States v. Windsor, 570 U.S. __ (2013), the Supreme Court partially struck down the dreadful Defense of Marriage Act. The provision of that Act in question held that, for purposes of all federal laws, marriage could only be between people of the opposite sex. The ramifications of striking down that law impact the federal Family and Medical Leave Act. Among other things, the FMLA provides job-protected leave for certain employees when necessary to care for a “spouse” with a serious health condition. As a result of partially striking down DOMA, employees who live in states with marriage equality gained the FMLA’s protection, because their marriages became recognized by federal law, including the FMLA. Unfortunately, because the FMLA defines “spouse” based on the state law where the employee resides, the newfound protection of Windsor does not protect employees in Ohio, which of course does not yet have marriage equality.
The DOJ’s announcement is surely a step in the right direction. And there is no doubt that the law, private companies, and public sentiment, are all trending towards inclusion for LGBT employees in the workplace. But there is still a long ways to go before these employees achieve full equality.
Despite the legal hurdles that remain, the Cleveland employment discrimination lawyers at Bolek Besser Glesius LLC have successfully represented LGBT employees who faced illegal discrimination in the workplace. If you believe your right to equal treatment at work may have been violated, contact us today for a free consultation.