Best Ohio LGBT Employment Discrimination Attorney Answer: Can I be fired for being gay? If the Supreme Court legalized gay marriage, why can I still be discriminated for my sexual orientation? Are gays and lesbians protected classes?
As things sit, in many parts of this country, including Ohio, a gay or lesbian can marry his or her partner and be fired the next day because his or her employer disfavors gay marriage. As our employment discrimination attorneys have blogged before, if the employer can demonstrate that the termination was motivated solely by sexual orientation, the employee may have no recourse in Ohio or under federal law (See Can My Employer Discriminate Against Me Because I Am LGBT? I Need A Lawyer; Can My Church Refuse To Hire Gay Cooks? Best LGBT Lawyer!; Is It Still Legal To Discriminate Against LGBTs?; Law: Can My Job Fire Me Because Of My Sexual Orientation?).
Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 4112 both prohibit employers from refusing to hire, terminating, or otherwise discriminating against an employee or applicant on the basis of that individual’s race/color, religion, gender/sex, or national origin. Like every other Circuit, the Sixth Circuit has held that discrimination against an employee on the basis of the race of the employee’s spouse is discrimination based on race in contravention of Title VII.
Simply put, an employer may not discriminate against an employee just because that employee is married to, related to, the parent of, or otherwise in close association with, someone of a different race. If the federal courts all agree that an employer cannot fire a person based on the race of her spouse, why should employers be allowed to discriminate against an employee based on the gender of her spouse? After all, Title VII applies to sex, just as it applies to race.
The Equal Employment Opportunity Commission (“EEOC“) has recently filed an amicus brief in an Eleventh Circuit case that lays out a clear, concise argument against associational discrimination based on sexual orientation, and which also points out that the logical extension of United States Supreme Court precedent and any rational interpretation of Title VII should prohibit employment discrimination based on sexual orientation.
The Plaintiff, Barbara Burrows, brought suit against her former employer, the College of Central Florida, alleging that she was discriminated against on the basis of her sexual orientation and for failing to conform to gender stereotypes. The U.S. District Court for the Middle District of Florida granted the college summary judgment and Burrows appealed. In its brief, the EEOC makes three strong arguments as to why Title VII ought to be interpreted as forbidding employment discrimination on the basis of sexual orientation.
First, the EEOC points out that sexual orientation discrimination necessarily involves sex stereotyping, which, under the Supreme Court’s decision in Price Waterhouse v. Hopkins, violates Title VII. Price Waterhouse and its progeny stand for the proposition that treating an employee differently because that employee does not conform to traditional gender norms is unlawful. In its Burrows brief, the EEOC rightly points out that an employer who discriminates on the basis of an employee’s sexual orientation is discriminating on the basis of that employee’s failure to conform to a traditional gender norm, the norm that men are attracted to women and women to men.
Second, the EEOC makes an argument that just as Title VII applies to discrimination based on association in the context of race, it should apply in the context of sex. Price Waterhouse made clear that Title VII, at least on its face, treats each of its protected classes the same. If Title VII makes it unlawful to fire an employee because that employee is married to a member of another race, so too should it be unlawful to discriminate against an employee just because the employee is married to a member of the same sex.
Lastly, the EEOC’s amicus brief in Burrows makes clear that sexual orientation discrimination is discrimination on the basis of sex and, thus, prohibited by Title VII, “because sexual orientation cannot be understood without reference to an individual’s sex (in conjunction with the sex of those to whom the individual is physically and/or emotionally attracted).” In other words, an employer is unable to discriminate against a gay man without first considering that man’s gender.
It’ll be some time before the Eleventh Circuit decides Burrows, but this is definitely a case to keep an eye on. If the court finds in favor of Ms. Burrows, the split that it will create among the circuits might be enough to get the arguments in Burrows in front of the Supreme Court.
In the meantime, if you are a gay or lesbian employee and feel that you’ve been discriminated against, the employment discrimination attorneys at The Spitz Law Firm are actively pursuing claims based on sexual orientation and would like to hear from you. Even if you are not sure about your discrimination claim, you should call the right attorney as quickly as possible 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 The Spitz 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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