Best Ohio LGBT Discrimination Attorney Answer: When will sexual orientation become a protected class from employment discrimination? Is Congress doing anything to prevent employers from discriminating against LGBT employees? Do LGBT employees have any protection in the workplace from being wrongfully terminated?
A frequent topic of this blog is the evolving landscape of the rights of lesbian, gay, bisexual and transgender (“LGBT”) employees in the workplace. (See Can I Be Fired Because I’m Gay Or Lesbian?; Can My Job Discriminate Against Me Because Of My Sexual Orientation?; What’s The Deal With Transgender Bathrooms At Work?) .
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 gender/sex. Oddly and illogically, though, sexual orientation is not a protected class under either Title VII or § 4112….for now.
A recent decision by the U.S. District Court for the Southern District of New York illustrates (1) just how awful an employer can be toward LGBT employees, without being held legally accountable; (2) how frustratingly close we are to a paradigm shift in LGBT employment rights; and (3) why it is so important that we all keep pushing for change.
In Christiansen v. Omnicom Group, Inc., the court was faced with unquestionably repugnant conduct by an employer that, if directed at a subordinate of the opposite sex, would have created an open and shut case of gender discrimination. Unfortunately for Matthew Christiansen, his supervisor was, like Matthew, male. Matthew, an openly gay man, worked as an Associate Creative Director for DDB Worldwide, a subsidiary of Omnicom. Matthew’s supervisor at DDB was a homophobic bully named Joe Cianciotto, who now works for Translation LLC, an ad agency that apparently doesn’t mind hiring homophobic bullies.
According to the Court’s decision, Cianciotto openly harassed Matthew because of Matthew’s homosexuality:
Plaintiff alleges several instances of harassment specifically targeted at him. Shortly after Plaintiff began his employment with DDB, “Cianciotto became openly resentful and hostile towar[d] Plaintiff because of his sexual orientation.” This hostility was expressed in May 2011 through two drawings by Cianciotto on a company whiteboard: Both featured a shirtless, “muscle bound” Plaintiff, and one of the two images placed Plaintiff’s torso on the body of a four-legged animal “with a tail and penis, urinating and defecating.” A third whiteboard drawing by Cianciotto, displayed in DDB’s office space in June 2011, depicted Plaintiff naked, with an erect penis and exaggerated muscles. The picture includes an air pump being manned by another employee and attached to Plaintiff’s wrist, with text next to Plaintiff reading “I’m so pumped for marriage equality,” while text by the other employee says, “I fucking hate being pumped.” Cianciotto produced and circulated to the office an edited version of a poster for the movie “Muscle Beach Party,” superimposing pictures of employees’ faces onto the bodies of the swimsuit-clad characters. Plaintiff’s face appears on the body of a woman, dressed in a bikini and reclining on her back with her legs in the air, in what Plaintiff describes as “the gay sexual receiving position.” Plaintiff alleges that an image of this poster was posted on Facebook, and — despite multiple requests from Plaintiff in October and November 2014 that it be taken offline — was not removed until January 2015.
Cianciotto, whose Facebook and Twitter pages can be found here and here, is a piece of garbage, a fact not lost on the Court, which found that, “[b]y any metric, the conduct alleged is reprehensible.”
Unfortunately, the Court was hamstrung by existing Second Circuit case law, which like every other Circuit, holds that sexual orientation is not a protected class under Title VII. The Court did recognize that claims based on non-conformity to traditional sexual stereotypes are cognizable, but held that Matthew’s claims were based solely on sexual orientation. Not for nothing, it’s hard to imagine how a poster depicting Matthew’s face “on the body of a woman, dressed in a bikini and reclining on her back with her legs in the air” doesn’t qualify as a claim based on non-conformity to traditional sexual stereotypes.
Before announcing that it was dismissing Matthew’s case, the Court pointed out recent “significant changes” in the LGBT employment landscape, including U.S. v. Windsor, which struck down the Defense of Marriage Act, Obergefell v. Hodges, which gave same-sex couples the right to marry, and a July 2015 EEOC decision that held that claims discrimination based on sexual orientation are cognizable under Title VII. It is clear that the Court was unhappy to have to rule as it did.
Matthew has appealed the decision to the Second Circuit and, in an encouraging development, 128 sitting members of the House and Senate have filed an amicus brief.
As we keep telling the readers of this blog, change is coming and there are already very strong legal arguments being made to add sexual orientation to the list of Title VII’s protected classes. Indeed, when the Republican National Convention in Cleveland saw an openly gay man address a cheering audience regarding LGBTQ rights, more change cannot be too far behind. 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 (216) 291-4744.
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