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Sexual Orientation Employment Discrimination: ENDA In Sight?

On Behalf of | Dec 13, 2013 | Gender Discrimination, Sexual Harassment |

Lawyer Answers: “Can I be fired for being gay?”, “Can my job discriminate on my sexual orientation?”, “Is it legal my boss to harass me because I’m homosexual?”

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Many people are surprised to learn that even today, employers can still openly discriminate against employees on the basis of their sexual orientation. Now, that broad statement comes with several “buts”: as the employment law attorneys at the Spitz law firm have previously blogged, employers can’t discriminate on the basis of “gender roles”- the idea that someone doesn’t act enough like a man or woman. But what about discrimination that occurs just because the employee happens to be gay?

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Interestingly, there is case law out there that creates a distinction between the rights of government employees and private employees. This is because Courts have found that unlike employees in the private sector, government employees can sometimes sue on the basis of certain Constitutional rights, such as the Fourteenth Amendment and the Due Process clause. For example, in Hutchinson v. Cuyahoga Cty. Bd. of Cty. Commrs, the plaintiff, a lesbian who worked for the Cuyahoga County Child Support Enforcement Agency, sued the county after she was denied numerous promotions because of her sexual orientation. Relying exclusively on case law surrounding the applicability of Title VII of the Civil Rights Act of 1964 to sexual orientation, the county argued that the plaintiff’s case should be dismissed because sexual orientation is not a protected category under Title VII. The Court rejected this argument, finding that the plaintiff could still make out a claim:

the Court concludes that an employee who alleges sexual orientation discrimination under § 1983 is not per se precluded from establishing an equal protection claim against her employer. Simply because Title VII does not include sexual orientation as a statutorily protected class does not, in this Court’s view, automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class. The Court is not convinced that application of Title VII’s framework…requires wholesale application of Title VII’s limitations on what classes are protected whenever an equal protection claim arises in the employment context. Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer [are actionable under a Due Process analysis].

Unfortunately, these additional Constitutional protections are not available to employees in the private sector. Thus, while a government employee may pursue a claim against their employer for discrimination on the basis of sexual orientation, employees in the private sector generally cannot. That could all change, however, with the Employment Non-Discrimination Act (ENDA).

ENDA has been around, in form or another, since 1994. Year after year, however, the law failed to gain enough support in the Senate and House to become law. But things are finally changing. Reccently, the Senate made history when it voted in favor of the law.

ENDA would finally prohibit discrimination on the basis of sexual orientation or gender identify in the workplace, for both public and private employees. The law excludes small employers with fewer than 15 employees, and contains exemption for certain religious employers.

That said, ENDA still has to be passed by the Congress in order to become law. Sadly, some legislators are still arguing that prohibiting employers from discriminating against employees on the basis of their sexual orientation will “cost American jobs, especially small business jobs.” Obviously, this is unlikely, especially given the exclusion for small businesses. Nonetheless, recent reports suggest that there may be enough support in the House for passage.

The employment attorneys at the Spitz law firm will continue to follow these developments and remain up-to-date on any changes that might affect our clients.

If you have been fired, discriminated against, denied wages, 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 866-797-6040. the Spitz law firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I …”, “What should I do …,” “My boss discriminated against me because I’m gay …” or “I was fired for being homosexual”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of the Spitz law firm, Brian Spitz, or any individual attorney.