REPOST ARTICLE SOURCE: http://knowledgebase.findlaw.com/kb/2012/May/636676.html
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, as of Fall 2010, 89% of Fortune 500 companies included sexual orientation in their anti-discrimination policies.[i] Twenty-one states and the District of Columbia now prohibit employment discrimination because of an employee’s sexual orientation.[ii] Fifteen of those states and the District of Columbia ban gender identity discrimination as well, providing protection for transsexual and transgendered employees.[iii] On the local level, more than 175 cities and counties across the nation, including most of the large cities in Ohio, have ordinances prohibiting sexual orientation discrimination.[iv]
Despite this growing trend, neither federal nor Ohio state employment discrimination statutes prohibit discrimination on the basis of sexual orientation or gender identity. Repeated legislative attempts to these protections to the statutes have failed. And the prospects for their addition in the near future are uncertain at best. Absent legislative action that has yet to come, a private employer in Ohio can fire an LGBT employee for not being heterosexual without fear of violating federal or Ohio employment discrimination statutes. Even the private employer who explicitly tells an employee “you’re fired because you’re gay” faces no statutory liability under federal or Ohio law. It would thus seem at first glance that LGBT employees must simply accept that they are not protected from discrimination. Yet while there are no traditional statutory protections, there are some legal options for Ohio employees who suffer workplace discrimination because they are not heterosexual.
Public sector LGBT employees have a critical potential ally on their side: the United States Constitution. A recent case from the Northern District of Ohio held that sexual orientation discrimination claims can be brought against a public employer under the Constitution’s Equal Protection Clause.[v] In that case, a Cuyahoga County employee sued, claiming she was denied promotions because she is a lesbian.[vi] The Court rejected the County’s argument that LGBT employees cannot sue for workplace sexual orientation discrimination. It held instead that a claim of sexual orientation discrimination against a public employer can be brought under the Equal Protection Clause, even though the federal anti-discrimination statute itself does not create such a claim.[vii]
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. LGBT employees might first turn to a local ordinance prohibiting sexual orientation discrimination if they work in a city that has one. With the exception of Akron and Youngstown, Ohio’s largest cities do.[viii] Unfortunately, none of the ordinances create a civil remedy for an aggrieved employee.[ix] But while the protections under the ordinances themselves may be relatively toothless, they may still aid an LGBT employee in fighting discrimination. There is a catch-all claim of wrongful discharge in violation of public policy under Ohio law.[x] 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.[xi]
Somewhat surprisingly, another potential option is the federal employment discrimination statute, Title VII. Although Title VII does not permit a claim for sexual orientation discrimination,[xii] some LGBT employees have successfully used Title VII’s prohibition on sex discrimination as an avenue to relief. The genesis of those claims is the United States Supreme Court’s 1989 decision in Price Waterhouse Coopers v. Hopkins.[xiii] The plaintiff in Price Waterhouse, a female accounting firm manager, was denied a promotion because she was considered too “macho.”[xiv] She was told her chances for promotion would improve if she began to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”[xv] 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.[xvi] Following Price Waterhouse, gay and lesbian employees have 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.[xvii]
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 provide an illustrative contrast. In Smith v. City of Salem, a transsexual lieutenant for the Salem, Ohio Fire Department was suspended after he began expressing a feminine appearance in line with his diagnosed Gender Identity Disorder.[xviii] Reversing the District Court’s dismissal of the complaint, the Sixth Circuit held that the plaintiff sufficiently stated a claim of sex-stereotyping when he alleged he was discriminated against because of “his failure to conform with sex stereotypes about how a man should look and behave. . . .”[xix] The plaintiff in Vickers v. Fairfield Medical Center was not quite so successful.[xx] The plaintiff, a private police officer, was harassed by co-workers after befriending a homosexual doctor at the hospital where he worked.[xxi] His co-workers called him “gay” and “fag,” wrote gay slurs on his report forms, shoved a sanitary napkin in his face, and even simulated sodomy on him while he was handcuffed during a training session.[xxii] Arguing the defendants objected to the sexual practices of homosexuality in which one of the men “behaved more like a woman,” the plaintiff tried to bring a sex-stereotyping claim.[xxiii] The Sixth Circuit rejected his argument. It held that the complaint was more properly viewed as one of harassment based on perceived homosexuality rather than gender non-conformity.[xxiv] The Court noted 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.[xxv] It held that accepting an employee’s sexual practices as the actionable non-conforming behavior under Price Waterhouse would effectively permit all claims of sexual orientation discrimination because “homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.”[xxvi]
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.[xxvii] As evidenced in Vickers, courts are therefore wary of bootstrapping. Absent careful pleading, a sex-stereotyping claim may well be dismissed for failure to state an actionable claim.
In contrast to the growing social and legal trend towards workplace equality, neither Ohio nor the federal government have yet outlawed sexual orientation discrimination in employment. Nonetheless, there are some options for LGBT employees who suffer employment discrimination. Public sector employees can base a claim on the Equal Protection Clause. Private sector employees must be more creative in the claims they bring. Under certain circumstances though, victims of sexual orientation discrimination by private employers can vindicate their rights as well.