Sexual orientation discrimination can be defined as discrimination because of someone’s sexual attraction to that of the same or opposite sex. Generally speaking in today’s society, most sexual orientation discrimination is against the gay and lesbian community. Of course, sexual orientation discrimination does encompass more than those two areas, such as employment discrimination against employees who are bisexual, pansexual, asexual, demisexual, skoliosexual, heterosexual (although rarely discriminated against), and others. Civil rights in this area of the law is still being advocated by the best employment lawyers across the county, and just like transgendered rights, still has a long way to go.
The opponents to the rights of lesbian, gay, bisexual, transgender (“LGBT”) employees or lesbian, gay, bisexual, transgender, queer/questioning (“LGBTQ+”) employees in the workplace often argue that United States law has not historically made it illegal to discriminate in employment discrimination based on who an employee is dating or otherwise associated with. This is simply not true. Under Title VII of the Civil Rights Act of 1964and Ohio Revised Code § 4112.01 et seq., your employer cannot discriminate against you as an employee because you are dating someone of a different race or national origin. Under the Americans with Disabilities Act (ADA), an employer cannot discriminate against an employee because that employee is associated with a disabled person. So, under federal and Ohio law, an employer cannot discriminate or fire a White woman for dating a Black man or a disabled man. So why would that same employer be about to discriminate against that same woman if she is sleeping with another woman? To be fully accurate, it is against the law for an employer to fire a Caucasian man for dating an African American man, but only if the termination was based on the race issue and not because the two men were having a homosexual or same-sex relationship. So, Ohio and US law has already blocked employers from looking at who an employee is romantically involved with regarding certain protected classes. Gender/sex is also a protected class that is addressed in the same exact statutes as race and national origin. If the law is blind as to the color of your significant other’s skin or national origin, shouldn’t it also be blind as to the gender of your partner as well? LGBTQ+ employees should have equal employment rights.
The Lengthy History Of Discrimination
In America, there has been a long, sad history of discrimination against those who were not heterosexual. In 1881, the first sodomy laws were enacted. While it is easy to condemn the Nazis for conducting human experiments on gay prisoners in concentration camps, the United States cannot turn a blind eye to its problemed history. Prior to 1973 when the American Psychiatric Association (APA) declassified homosexuality as a mental disorder, aversion therapy was used routinely in hopes that it would prevent or eliminate homosexual behavior. This included using electric shock therapy in their attempt of conversion therapy. This means that less than two generations ago, there was a prevailing thought that by electrocuting people, one could make them become “normal.”
Sadly, the belief that individuals can choose to be homosexual or not still prevails among large sections of our population. These biases, fears and opinions have infiltrated the workplace by employers who favor a “traditional” lifestyle.
There has been a lot of positive news recently for the LGBT community. The country is truly feeling the wake of the historic holding by the United States Supreme Court in Obergefell v. Hodges, in which the court held that the Fourteenth Amendment to the United States Constitution requires each State to issue marriage licenses to people of the same sex and to also honor a same-sex marriage that had been lawfully licensed in a different state. The Supreme Court’s ruling in Obergefell made clear that all couples, including LGBT, have the right to marry, irrespective of who they love. This was a historic victory.
More recently in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the United States Supreme Court held: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can and, in some instances, must protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
But, this is an employment law firm., and our top question is: do all people have a right to work and employment, irrespective of who they love, or for that matter don’t love? Unfortunately, in the majority of states, employers can still fire employers based on sexual orientation. Our employment discrimination attorneys, who have been at the forefront of fighting for the rights of workers who are gay, lesbian, homosexual, bisexual, pansexual, asexual, demisexual, skoliosexual and anywhere in the sexual orientation spectrum. These lawyers have frequently blogged about, LGBT/LGBTQ+ employment discrimination is an evolving area of the law. Some state and local governments have already enacted laws prohibiting employment discrimination on the basis of sexual orientation.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race or color, religion, gender, and national origin. However, Title VII’s definitions of “because of sex” and “on the basis of sex” have not generally been applied to sexual orientation or LGBTQ+ rights. Currently, no federal law explicitly forbids employment discrimination by private employers based on sexual orientation, although the Employment Non-Discrimination Act has been introduced, and has failed, in every Congress since 1994.
Progress Is Happening
There have been some monumental cases in the United States recently that have increased protections for those discriminated against because of their sexual orientation. One such case is that of Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015) where the plaintiff alleged that the employer did not consider him for an employment position because he was gay. The employer was found to have made negative comments about the plaintiff’s lifestyle such as “we don’t need to hear that gay stuff” and that he was “a distraction” when he included conversations about his partner.
In this decision, it was determined that sexual orientation discrimination involved sex-based consideration, simply put, because the discrimination is based in an association with a person’s sex, that is sex discrimination, and therefore sexual orientation falls under that category. While not binding law or even precedent for actual courts to follow, the EEOC opined that Title VII, as currently written bars discrimination based on sexual orientation. (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? Call The Right Attorney). To our employment lawyers, there were several key components to how the EEOC reached this conclusion, including:
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VIl coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination-whether the agency has relied on sex-based considerations” or take[n] gender into account when taking the challenged employment action.
In the case before us, we conclude that Complainant’s claim of sexual orientation discrimination alleges that the Agency relied on sex-based considerations and took his sex into account in its employment decision regarding the permanent FLM position. The Complainant, therefore, has stated a claim of sex discrimination. Indeed, we conclude that sexual orientation is inherently a “sex-based consideration,” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complainant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account.
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex.
After this decision, Secretary Thomas Perez of the Department of Labor (“DOL”) commented on the opinion as follows: “Our workforce and our entire economy are strongest when we embrace diversity to its fullest, and that means opening doors of opportunity to everyone and recognizing that the American Dream excludes no one.” Consistently, the Office of Federal Contract Compliance Programs, an agency of the Department of Labor that is dedicated to ensuring that employers with contracts with the federal government comply with non-discrimination policies, implemented similar protections for federal employees and issued a directive determining that sex discrimination under Executive Order 11246 includes discrimination on the bases of gender identity and transgender status. The executive order alone stands to impact the rights of nearly 28 million employees nationwide and was issued to become effective immediately.
Another case is Hively v. Ivy Tech Cmty. Coll. Of Ind., 853 F.3d 339 (7th Cir. 2017). In this case, a female employee was terminated because she was lesbian. The United States Court of Appeals for the Seventh Circuit determined that Title VII of the Civil Rights Act was violated by looking at the plaintiff specifically – being a lesbian – and if she would have been fired if instead of marrying a woman, she would have married a man, then she was discriminated on the basis of sexual orientation.
Then, notably, in Zarda v. Altitude Express, Inc., 2018 WL 1040820 (2nd Cir. 2018), a skydiving instructor felt discriminated against due to his sexual orientation in his employment when the complaints about the “proximity” of the plaintiff [instructors are typically harnessed to the back of the diver] to a male customer made the employer uncomfortable because the plaintiff was gay. The United States Court of Appeals for the Second Circuit held that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” The reason this is so is “because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.” The court concluded that Title VII can be a basis for a claim of sexual orientation discrimination.
So, as can be seen, there have been small strides in the area of sexual orientation discrimination in the workplace. But these strides are only that, and there is a long way to go before we as a country have full equality in the workplace when it comes to sexual orientation. Our employment lawyers at the Spitz law firm, are committed to fostering that equality in Ohio, whether if that is using the current law to help our cases, or bringing new arguments to further equality in the state.
If you have experienced discrimination because you are gay, a lesbian, bisexual, or any other sexuality designation, call our attorneys for a free consultation today! Although sexual orientation discrimination or LGBTQ+ discrimination takes many forms, you should immediately call our employment lawyers at the Spitz law firm, if you find yourself saying or searching the internet for the following:
Because the employment discrimination laws surrounding sexual orientation discrimination and LGBTQ+ workers are constantly in flux and can be confusing and overwhelming, you should get a free evaluation from a team of lawyers that understands what you are going through and will support you.