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For many American voters this November, one of the most divisive issues will be same-sex marriage. Ten years ago, the average voter would have thought legalizing same-sex marriage was practically impossible. In recent years, however, the shift in public opinion towards recognizing same-sex marriage and other similar rights for homosexuals is evident.  Yet, under federal law – and the laws in most U.S. states – it is still legal for an employer to discriminate or retaliate against an employee on the basis of his or her sexual orientation.

Under Title VII of the Civil Rights Act of 1964, sexual orientation is not a protected class, so individuals do not have a cause of action for discrimination based on sexual orientation. See Gilbert v. Country Music Ass’n, Inc. Similarly, in Ohio, discrimination based on one’s sexual orientation is not unlawful.  See Cooke v SGS Tool Co.

Although sexual orientation discrimination is not a valid claim under current federal and Ohio law, courts have recently expanded protection to homosexuals under what attorneys and lawyers call a “gender stereotyping discrimination” theory.  Under this theory – often called gender or sexual stereotyping discrimination – rather than looking at actual sexual orientation, the crucial inquiry is whether the plaintiff was discriminated against because he or she did not conform to traditional gender stereotypes. For instance, in Price Waterhouse v. Hopkins, the U.S. Supreme Court held that discriminating against a person because that person does not exhibit traditional gender stereotypes is a form of sex discrimination proscribed by Title VII.

Following the Supreme Court’s lead, the U.S. District Court for the Northern District of Ohio has recognized discrimination based on gender stereotyping.  In 2012, in Koren v. The Ohio Bell Telephone Co., the plaintiff (Jason Koren) claimed that his employer discriminated against him because he took his husband’s name after they married, but the employer did not discriminate against women for doing the same.  The district court allowed Koren’s case to proceed under a gender stereotyping theory.  Similarly, in 2004, the U.S. Court of Appeals for the Sixth Circuit (the federal appellate court that includes Ohio), found that the plaintiff (Jimmie Smith) had stated a claim for relief under a “sex stereotyping theory,” when he alleged that his employer discriminated against him for failing to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.  Smith v. City of Salem, Ohio.

Thus, while Congress (and Ohio) has not yet recognized discrimination based on sexual orientation, courts are finding ways to expand protection to homosexuals by recognizing the legitimacy of related claims.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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