Best Ohio LGBT Discrimination Attorney Answer: Can I be fired for being gay? If the Supreme Court legalized gay marriage, why can my job still discriminate against me because of my sexual orientation? Are gays and lesbians protected classes from employment discrimination?
The Supreme Court’s ruling in Obergefell made clear that all couples have the right to marry, irrespective of who they love. As our employment discrimination attorneys have blogged about before, in the majority of states, including Ohio, employers can still fire an employee based on sexual orientation. (See Can I Be Fired Because I’m Gay/Lesbian?; Law: Can My Job Fire Me Because Of My Sexual Orientation?; Is It Still Legal To Discriminate Against LGBTs?; Can I Be Fired For Marrying A Person Of The Same Sex?; and Can My Boss Fire Me Because I Am Homosexual?)
As things sit, in many parts of this country, a gay or lesbian can marry his or her partner and be fired the next day because his or her employer disfavors gay marriage. If the employer can demonstrate that the termination was motivated solely by sexual orientation, the employee has no recourse. The tide is definitely shifting in LGBT (Lesbian, Gay, Bisexual, and Transgender) rights but further changes are needed.
Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire, terminating, or otherwise discriminating against an employee or applicant on the basis of that individual’s race, color, religion, sex, or national origin. Since at least 1999, the law of the United States Sixth Circuit Court of Appeals has been that employers may also not discriminate against an employee on the basis of the employee’s close association with a member of another protected class. In Tetro v. Elliot Popham, the court held that terminating a white employee because he had a bi-racial child was discrimination based on race. Similarly, in Cole v. Seafare, the Hamilton County Court of Appeals held that Ohio’s R.C. § 4112.02 prohibits discrimination on the basis of an individual’s association. Thus, under both federal and Ohio law, an employer may not discriminate against an employee on the basis of who that employee chooses to associate with, whether that discrimination is based on race/color, religion, gender/sex, and/or national origin.
While no court has addressed it, there may be a colorable argument that an employer who discriminates against a male employee, because that male employee is married to another male, has violated Title VII and R.C. § 4112. The counterargument to this theory is that most of the courts that have upheld claims of discrimination based on association have done so on the basis that it violates Title VII to discriminate based on animus toward a member of a protected class, even if the discrimination is aimed at an associate of the protected class member. In other words, an employer cannot fire an Italian employee because she is married to an Irishman and the employer dislikes the Irish. Likewise, an employer cannot fire a Caucasian woman because her wife is African American and the employer dislikes African Americans. In both of these examples, the associate is in a protected class. In the case of a female employee who is fired because her wife is also a female, the associate is not in a protected class on the basis of sexual orientation, at least in Ohio.
A stronger hybrid argument would rely on the Sixth Circuit’s decision in Smith v. City of Salem. In Smith, the Court interpreted the Supreme Court’s decision in Price Waterhouse v. Hopkins to mean that allegations that an employee was discriminated against because the employee did not conform to stereotypical norms concerning gender were actionable under Title VII. Smith specifically dealt with employer discrimination against a transgender employee. Smith points out that, “an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.”
If an employer violates Title VII when it discriminates against women who do not conform to societal norms about femininity, because they don’t wear dresses or makeup, an employer who discriminates against women who do not conform to societal norms, simply because they are in a romantic relationship with another woman, should be similarly held to violate Title VII.
Another approach to bringing a claim for employment discrimination based on sexual orientation may be found in the common law theory of wrongful termination based on public policy. In Ohio, an aggrieved employee may bring a so-called Greely claim when: (1) a clear public policy existed and was manifested in a state of federal constitution, statute or administrative regulation, or in the common law (the clarity element); (2) dismissing the employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element); (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element); and (4) the employer lacked an overriding justification for the dismissal (the overriding justification element).
In Obergefell, the Court announced that the right to marry is a fundamental right and that gay and lesbian couples may not be deprived of that right. With that announcement, it seems that a clear public policy is now firmly entrenched in the common law. Certainly, terminating an employee because he or she is married to a member of the same sex jeopardizes this policy. If an Ohio employer terminates an employee because the employee is in a same-sex marriage, and does not have an overriding legitimate business reason for doing so, that employee may well have a claim for wrongful termination in violation of public policy. Bringing a Greely claim to remedy employment discrimination based on sexual orientation is not a perfect solution. Doing so would necessarily require an aggrieved employee who was either married or had announced his or her intention to marry. Additionally, as a Greely claim is an exception to the at-will employment doctrine, such a claim cannot be brought on behalf of an employee who had an employment contract.
Neither of the theories above has been tested in the courts. Perhaps, neither will need to be tested if recent trends continue. As our lawyers have written about, many federal employees, as well as employees of federal contractors, are now protected from employment discrimination based on sexual orientation. Additionally, the EEOC has taken the position that discrimination based on sexual orientation violates Title VII.
While the tide is definitely turning in LGBT employment law, we still have quite a way to go. If you are a gay or lesbian employee and feel that you’ve been discriminated against, you may have rights under Federal and Ohio laws. Even if you are not sure about your discrimination claim, you should get legal help. If you are searching “I need a lawyer because I have was wrongfully fired or terminated today;” or “I have been discriminated against because I am …” gay, a lesbian, bisexual, or transgendered; or even think that you might need an employment law lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Your employment rights are constantly changing and the best way to find out if you can sue your boss, manager, supervisor or employer for discrimination, harassment, or wrongful termination is to call Spitz, The Employee’s Law Firm and talk to its attorneys, who are experienced and dedicated to protecting the rights of employees just like you.
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