The opponents to the rights of lesbian, gay, bisexual, transgender (“LGBT”) employees or lesbian, gay, bisexual, transgender, queer/questioning (“LGBTQ”) employees in the workplace often argue that United States law has not historically made it illegal to discriminate in employment discrimination based on who an employee is dating or otherwise associated with. This is simply not true. Under Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 4112.01 et seq., your employer cannot discriminate against you as employee because you are dating someone of a different race, or national origin. Under the Americans with Disabilities Act (“ADA”) an employer cannot discriminate against an employee because that employee is associated with a disabled person. So, under federal and Ohio law, an employer cannot discriminate or fire a White woman for dating a Black man or a disabled man. So why would that same employer be about to discriminate against that same woman if she is sleeping with another woman? To be fully accurate, it is against the law for an employer to fire a Caucasian man for dating an African American man, but only if the termination was based on the race issue and not because the two men were having a homosexual or same sex relationship. So Ohio and US law has already blocked employers from looking at who an employee is romantically involved with in regard to certain protected classes. Gender/sex is also a protected class that is address in the same exact statutes as race and national origin. If the law is blind as to the color of your significant other’s skin or national origin, shouldn’t it also be blind as to the gender of your partner as well?
There has been a lot of positive news recently for the LGBT community. The country is truly feeling the wake of Caitlyn Jenner’s news prevalence over her decision to live life as a woman; and the historic holding by the United States Supreme Court in Obergefell v. Hodges, in which the Court held that the Fourteenth Amendment to the United States Constitution requires each State to issue marriage licenses to people of the same sex and to also honor a same sex marriage that had been lawfully licensed in a different state. The Supreme Court’s ruling in Obergefell made clear that all couples have the right to marry, irrespective of who they love. This was an historic victory.
But, this is an employment law firm, and our top question is do all people have a right to work and employment, irrespective of who they love. Unfortunately, in the majority of states, though, employers can still fire employers based on sexual orientation. As our employment discrimination attorneys, who have been at the forefront of fighting for the rights of gay, lesbian, bisexual and transgender workers, have frequently blogged about, LGBT/LGBTQ employment discrimination is an evolving area of the law. Some state and local governments have already enacted laws prohibiting employment discrimination on the basis of sexual orientation. (see Can My Employer Discriminate Against Me Because I Am LGBT? I Need A Lawyer!; LGBT Employment Rights: Can I Be Fired For Dressing Too Masculine?; Top Employment Lawyer Reply: Can My Job Discriminate Against Me Because Of My Sexual Orientation?; and Can An Employer Refuse To Hire Me Because I’m Transgendered? I Need A Lawyer!). Notably, Ohio is one of the states with no LGBT employment discrimination laws on the books.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race or color, religion, gender, and national origin. However, Title VII’s definitions of “because of sex” and “on the basis of sex” have not generally been applied to sexual orientation. There is currently no federal law explicitly forbidding employment discrimination by private employers based on sexual orientation, although the Employment Non-Discrimination Act has been introduced, and has failed, in every Congress since 1994.
But, In July 2015, the Equal Employment Opportunity Commission (“EEOC”) issued what will likely be a key decision in John Doe v. Foxx, for the employment law rights for LGBT/LGBTQ employees. While not binding law or even precedent for actual courts to follow, the EEOC opined that Title VII, as currently written bars discrimination based on sexual orientation. (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney). To our employment lawyers, there were several key components to how the EEOC reached this conclusion. The first was a direct frontal approach:
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VIl coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination-whether the agency has relied on sex-based considerations” or take[n] gender into account when taking the challenged employment action.
In the case before us, we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex–based considerations and took his sex into account in its employment decision regarding the permanent FLM position. The Complainant, therefore, has stated a claim of sex discrimination. Indeed, we conclude that sexual orientation is inherently a “sex-based consideration,” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian,” if she is physically and/or emotionally attracted to other women. Someone is referred to as “heterosexual or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex. See, e.g., American Psychological Ass’n, “‘Definition of Terms: Sex. Gender, Gender Identity, Sexual Orientation (Feb. 2011), available at http://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf (“Sexual orientation refers to the sex of those to whom one is sexually and romantically attracted.”‘ … It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations. One can describe this inescapable link between allegations of sexual orientation discrimination and sex discrimination in a number of ways.
Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. …
The court in Hall v. BNSF Ry. Co., No. 13-2160, 2014 WL 4719007 (W.D. Wah., Sept .. 22 2014) adopted this analysis of Title VII. In that case, the court found that the plaintiff, a male who was married to another male, alleged sex discrimination under Title VII when he stated that he “experienced adverse employment action in the denial of the spousal health benefit, due to sex, where similarly situated females [married to males] were treated more favorably by getting the benefit.” Id. at *2. The court recognized that the sexual orientation discrimination alleged by the plaintiff constituted an allegation that the employer was treating female employees with male partners more favorably than male employees with male partners simply because of the employee’s sex. See also Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002) (“One way (but certainly not the only means) of [alleging a claim under Title VII] is to inquire whether the harasser would have acted the same if the gender of 1he victim bad been different .. A jury could find that [Heller’s manager] would not have acted as she (allegedly) did if Plaintiff were a man dating a woman, instead of a woman dating a woman.”)…
This pronouncement from the EEOC should be taken in context with 2012 EEOC decision in Macy v. Holder, which found in favor of a transgender woman who applied for a position as under her former male identity, was promised the position on several occasions both verbally and in writing, and then upon informing the potential employer of her transition from male to female was told the position is no longer available. This decision has clarified the definition of “sex” to include gender identity.
After this decision, Secretary Thomas Perez of the Department of Labor (“DOL”) commented on the opinion as follows: “Our workforce and our entire economy are strongest when we embrace diversity to its fullest, and that means opening doors of opportunity to everyone and recognizing that the American Dream excludes no one.” Consistently, the Office of Federal Contract Compliance Programs, an agency of the Department of Labor that is dedicated to ensure that employers with contracts with the federal government comply with non-discrimination policies, implemented similar protections for federal employees, and issued a directive determining that sex discrimination under Executive Order 11246 includes discrimination on the bases of gender identity and transgender status. The executive order alone stands to impact the rights of nearly 28 million employees nationwide and was issued to become effective immediately.
The Foxx and Macy decisions and Executive Order 11246 stand to impact employment discrimination litigation heavily for individuals who feel they are treated wrong because of their gender identity. This new and greater protection affords employees recourse for the wrong doing of their bosses for mistreating them on the basis of identifying with a gender different from their biological gender.
If you feel like your boss is mistreating you because of your sexual orientation, you are a man that identifies himself as a woman or vice versa, you need to call the right attorney to protect your rights. You should not be fired because of who your] are attracted to. Men and women who are transitioning to the sex they most identify with do not have to tolerate any mistreatment or discrimination because of his or her chosen identity. Do not hesitate to seek legal advice from an employee’s attorney to ensure your rights are being protected.
Although LGBT discrimination takes many forms, you should immediately call The Spitz Law Firm if you find yourself saying or searching the internet for the following:
- My boss is homophobic.
- My manager and supervisor keep harassing me because I’m a LGBT/LGBTQ worker.
- My employer fired me when it learned that I am homosexual.
- I was not promoted because I’m a lesbian, despite the fact that I have more experience, better reviews, and scored better on the interview scores than the heterosexual that got the job.
- My manager keeps calling me fag, faggot, dyke, butch, butt pirate, queer, queen, Mary, and other offensive slurs.
- HR would not do anything after I reported that coworkers were harassing me because I’m gay.
- I was fired when my supervisor found out that I was dating another man.
- My boss keeps telling me that I that if I have sex with him or a friend that I might not be a lesbian any more.
- My boss regularly tells offensive jokes about gays, lesbians, bisexuals, and transgendered people.
- I was told that I would be fired if I don’t dress like a man should instead of my women’s clothing.
- My manager keeps asking for details of my sex life because he likes hearing about “woman on woman action.”
- I was told that I just got passed over for a promotion because I’m transgendered.
- My boss will not let me use the woman’s bathroom even thought that is the gender that I identify with.
- I was fired today when I told my job that I am transitioning to be a woman.
- My company won’t let me use the men’s bathroom even though that is the gender that I associate with.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at (216) 291-4744. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
Because the employment discrimination laws surrounding LGBT/LGBTQ workers is constantly in flux and can be confusing and overwhelming, our sexual orientation employment lawyers will address some frequently asked questions: