Best Employment Discrimination Lawyer Reply: Can I sue if I was turned down for a job because I’m a lesbian? Is it illegal for employers to discriminate against LGBT employee or applicants? What should I do if my boss fired me when he found out that I’m bisexual and in a same sex relationship?
Employment rights for the Lesbian, Gay, Bisexual and Transgender (“LGBT“) community are a developing topic with cases of first impression being decided every day that our employment discrimination attorneys have blogged about regularly. (See Is It Still Legal To Discriminate Against LGBTs?; Law: Can My Job Fire Me Because Of My Sexual Orientation?; Can My Boss Fire Me Because I Am Homosexual?; LGBT Employment Law: Can I Be Fired For Dressing Too Masculine?; and Can My Employer Discriminate Against Me Because I Am LGBT? I Need A Lawyer!)
Yesterday, the Norfolk Superior Court in Massachusetts decided one those cases of first impression in Barrett v. Fontbonne Academy. I was fortunate enough to be contacted by the Boston Globe to comment on the LGBT legal issues addressed in Barrett, but we will get to my comments shortly.
The facts of the case lay out like this: Fontbonne Academy hired Matthew Barrett to be its food services director. As is typical, after being hired there is a ton of new hire paperwork to complete. On form, Barrett was asked to identify his emergency contact and list his spouse, who also happened to be male. Now, unlike Ohio, Massachusetts has express laws on the books making it illegal to discriminate against employees or applicants based on their sexual orientation and gender identity. Nonetheless, the employer withdrew the offer of employment after it realized that Barrett was gay. Because Sister Enright expressly told Barrett that his employment was being terminated expressly because he was gay, there is no question that he was fired because of his protected status– which is very different than most cases where the employer falsies the reason for the wrongful termination leaving the employee to prove that the stated reason was pretext or a lie. As the Court held: “The undisputed facts establish the employer’s motivation with unparalleled clarity. Fontbonne declined to hire a qualified food service employee because he was a spouse in a same-sex marriage.”
Instead, Fontbonne Academy argued that it was exempted from the anti-discrimination laws because it was a religious institution as a Catholic preparatory school. While there were some technical statutory interpretation arguments advanced by Fontbonne Academy that failed, the most interesting argument was the employer’s assertion that “its Constitutional right to expressive association entitles it to deny Barrett employment because of its views that his marriage to a man as incompatible with its mission and its expectations of its employees.” The Court rejected this argument as well and entered judgment in favor of Barrett leaving only the matter of damages for trial.
As is the case with any interview I’ve given to news media on employment law issues, not all of my opinion makes the final cut. Here is the part that did:
“It is the first reported case with regards to a religious institution,” said Brian D. Spitz, an employment lawyer in Ohio whose firm represents clients from the LGBTQ community.
“Sexual orientation is a protected class deserving of the same level of protection as other protected classes,” Spitz said. “If the Fontbonne Academy argued that it was against their religious tenets to hire a woman or a black person, their arguments would be ridiculed as absurd at first look.”
By this I meant to say that once sexual orientation is made a protected class, it deserves the same level of protection as other protected classes. Think about it this way, if the religious institution believed that interracial marriage was contrary to its religious beliefs (which was a real form belief of several religious institutions not more than 40 years ago), would you argue that it could not hire an applicant in an interracial marriage? If the Fontbonne Academy argued that it against their religious tenants to hire a woman or a black person, their arguments would be ridiculed as absurd at first look. Does any employer have a First Amendment right to preach that African American employees are inferior or that woman should be precluded from certain jobs? For the same reason, discrimination against the LGBT or LGBTQ community is equally absurd. The Court decision is key when it held, “To hold otherwise would … permit an employer to grant itself constitutional protection from anti-discrimination laws simply by saying the right words.”
The Barrett decision is a case of first impression in that it combines two separate lines of holdings to reach a decision for the first time regarding employment of LGBT or LGBTQ individuals at religious institutions. Undisputedly, Massachusetts state law protects both sexual orientation and gender identity. There is a dispute as to whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964, which the EEOC has held that it does in Macy v. Holder, but Barrett does not address that issue. (See Can An Employer Refuse To Hire Me Because I’m LGBT? Best Lawyer Reply!).
Moving to the applicability of employment laws to religious institutions, there is a long line of cases that have held that religious institutions are not exempt from the Title VII laws barring discrimination based on race, gender, or national origin, including Petruska v. Gannon Univ., in the Third Circuit, Rayburn v. General Conf. of Seventh-Day Adventists and Kennedy v. St. Joseph’s Ministries, Inc., in the Fourth Circuit, Boyd v. Harding Academy of Memphis, Inc., in the Sixth Circuit, and EEOC v. Pacific Press Publishing Ass’n, in the Ninth Circuit, for example. (See Can My Church Job Fire Me For My Fertilization Treatments?; Can I Sue A Religious Employer For Discrimination?)
There is obviously a ministerial exception that allows religious institutions to hire individuals, such as ministers and other key figures in religious activities. Food services does not fit into such an exemption. Barrett had a right to work free from discrimination based on his sexual orientation under Massachusetts law. Fontbonne Academy broke the law when it would not hire him.
Unfortunately, Ohio does not have express laws, but our lawyers still believe that there are legal arguments to protect LGBT workers in Ohio.
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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