Sexual Orientation Discrimination
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.
On June 15, 2020, the United States Supreme Court, in Bostock v. Clayton County, Georgia, handed down an historical decision extending to them the protections under Title VII of the Civil Rights Act of 1964 for those who have been discriminated against, retaliated against, or suffered any other type of adverse action by an employer, simply because they are a member of the LGBTQ community. The Honorable Justice Neil Gorsuch wrote for the Court: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
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 Spitz, The Employee’s 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.
Frequently Asked Questions About Sexual Orientation Discrimination
Everyone deserves to work without the fear of discrimination. At Spitz, The Employee’s Law Firm, we understand the difficulties many face with these issues. Here are some of the main questions we see frequently around sexual orientation discrimination:
What States Protect All Employees From LGBT/LGBTQ Discrimination? Can I Sue My Employer For Discriminating Against Me Because I’m A Lesbian, Gay, Bisexual, Transgender or Queer Person?
Not all states ban LGBT/LGBTQ discrimination in employment. Unfortunately, Ohio is one of those states that does not make it illegal for private employers to discriminate against LGBT workers. Sexual orientation and gender identity are protected by statute in California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington. Additionally, New York, New Hampshire and Wisconsin have laws that outlaw sexual orientation discrimination, but those laws do not offer any protection to transgender employees or based on gender identity.
Are There Any Laws In Ohio That Make Employment Discrimination Against LGBT/LGBTQ Workers Illegal? Can My Employer Terminate Me Because He Found Out That I Married Another Man And My Employer Doesn’t Believe In Gay Marriage?
Since January 21, 2011, via executive order signed by Governor John Kasich, the State of Ohio prohibits discrimination against its employees and applicants for employment based on sexual orientation. However, neither this executive order nor any other law protects the State of Ohio employees from discrimination based on gender identity or being transgender.There are 29 cities and counties in Ohio that have passed anti-discrimination ordinances. All 12 of these ordinances prohibit sexual orientation discrimination by governmental employers only, including Cuyahoga County, Cuyahoga Falls, Franklin County, Gahanna, Hamilton, Hamilton County, Laura, Lima, Lucas County, Montgomery County, Summit County, and Wood County.
Additionally, 17 of these employment discrimination ordinances that make it illegal for any employer in that community to discrimination based on an employee being LGB or LGBT, including Akron, Athens, Bowling Green, Canton, Cincinnati, Cleveland, Cleveland Heights, Columbus, Dayton, East Cleveland, Lakewood, North Olmsted, Oberlin, Oxford, Shaker Heights, Toledo, and Yellow Springs. The problem with the municipal ordinances is that they do not provide any substantive rights to the employee to sue the employer for a violation. Violation of these ordinances could essentially result in a citation with a fine that is equivalent to a speeding ticket, at best.
Are There Any Federal Laws That Protect LGBT/LGBTQ Workers From Discrimination By Private, Non-Government Employers? What Should I Do If I Was Fired Today When My Boss Found Out That I Am A Lesbian, Gay, Bisexual, Transgender or Queer Person?
Since the mid-1960s, federal contractors and subcontractors have been prohibited from engaging in discriminatory employment practices based on an individual’s race, gender, national origin, religion, or age. Executive Order 13672, signed by President Obama over the summer, adds gender identity and sexual orientation to the list of protected characteristics. President Obama’s Executive Order 13672 amends Executive Order 11246, signed by Lyndon Johnson in 1965, which “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” Executive Order 13672 is the first federal action explicitly prohibiting LGBT discrimination in the private sector and is an important step in ending LGBT discrimination. Recently, the United States Department of Labor (“DOL”) published its final rule implementing Executive Order 13672. The final rule was effective starting on April 8, 2015, and applies to contractors and subcontractors who enter into or modify, any contracts with the federal government after that date. To comply with Executive Order 13672, all federal contractors and subcontractors must take affirmative action ensuring that their job applicants and employees are not discriminated against because of their sexual orientation or gender identity.
Executive Order 13672 further requires that federal government contractors and subcontractors include language in their contracts reflecting the fact that sexual orientation and gender identity are now protected classes for the purpose of employment discrimination. Federal contractors and subcontractors must also add similar language in any job advertisements and notices to third-parties. In short, it will soon be as illegal for a federal contractor to discriminate against an LGBT individual as it would be to discriminate against an individual based on race, religion, or any other protected class.
Do I Have Different Rights If I Am Lesbian, Gay, Bisexual, Transgender or Queer And Work For The Federal Government? Is Sexual Orientation A Protected Class?
In 1998, President Clinton amended Richard Nixon’s Executive Order 11478, which prohibited discrimination within the federal civil service based on race, color, religion, sex, national origin, handicap, and age. President Clinton expanded the list of protected classes to include sexual orientation. President Obama’s executive order also amends Executive Order 11478 to add gender identity to that list. Federal civil service includes civilian employees of the armed forces and Postal Service.
Can I Make A Claim Of Sexual Harassment Against My Boss Or Manager Of The Same Gender?
Title VII prohibits employment discrimination based on sex, including sexual harassment. Same-sex harassment is also illegal under Title VII. Sexual harassment can occur when a boss, manager, or supervisor offers to trade job benefits or job security for sexual favors – such as a promotion for blowjobs or not being fired as long as you are having sex with him or her. Employment lawyers call this quid pro quo sexual harassment.
Another form of sexual harassment is hostile work environment sexual harassment. While hostile work environment claims cannot be based on one or two stray remarks, courts in Ohio will weigh the frequency and severity of remarks about your physical appearance and/or genitalia; comments or discussions about sex; improper touching, especially touching of a sexual nature; sending, showing or sharing naked or sexually explicit pictures, stories, or jokes; and other similar conduct. (See Same-Sex Sexual Harassment – Less Common, But Just As Illegal; Top Sex Harassment Lawyer Reply: Am I Protected From Homosexual Harassment At Work?; and Best Gender Discrimination Attorney Answers: Can A Man Sue His Male Boss For Sexual Harassment?.
Is There Any Help Coming For Lesbian, Gay, Bisexual, Transgender, And Queer Employees? Is there any help in sight to stop employment discrimination against LGBT/LGBTQ workers?
Since 1994, there have various attempts to pass federal laws that make it unlawful for employers to discriminate against gay, lesbian, bisexual and transgender employees. The most recent effort was in 2013 when the Senate passed the Employment Non-Discrimination Act (ENDA). As passed by the U.S. Senate, ENDA would have finally prohibited discrimination on the basis of sexual orientation or gender identity in the workplace, for both public and private employers. Although, ENDA would have excluded employers with less than 15 employees, and contains an exemption for certain religious employers. While still better than no protection, Title VII does not allow smaller employers to refuse to hire Black, Muslims, or Hispanic. Nonetheless, ENDA was not passed by Congress and thus, is not law. But, recently, there has been some talk that Democrats in Congress would be introducing the Equality Act, which would not only give LGBT/LGBTQ Americans workplace protection, but afford them the same protections as other protected classes in housing, public accommodation, and education.
What If I’ve Experienced Discrimination?
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 Spitz, The Employee’s Law Firm, if you find yourself saying or searching the internet for the following:
- My boss is homophobic.
- My manager and supervisor keep harassing me because I’m gay.
- My employer fired me when it learned that I am homosexual/gay/lesbian.
- I was not promoted because of my sexual orientation, despite the fact that I have more experience, better reviews, and scored better on the interview scores than the heterosexual that got the job.
- My manager keeps calling me “fag”, “faggot”, “dyke”, “butch”, “butt pirate”, “queer”, “queen”, “queeny”, “lesbo,” “carpet muncher,” “masc”, “Mary,” and/or other offensive slurs.
- HR would not do anything after I reported that coworkers were harassing me because I’m gay.
- I was fired when my supervisor found out that I was dating and in a relationship with another man.
- My boss keeps telling me that if I have sex with him or a friend, I might not be a lesbian anymore.
- I was laid off when I came out at work and my boss found out that I am in a same-sex marriage.
- My boss regularly tells offensive jokes about gays, lesbians, bisexuals, and homosexuals people.
- My supervisor keeps inviting me into a threesome because I’m bi.
- My manager keeps asking for details of my sex life because he likes hearing about “woman on woman action.”
- I was told that I just got passed over for a promotion because I’m in a same-sex relationship.
- The owner of the company that I work at told me that I’m a sin and against his religious beliefs.
- My manager offered to “fuck me” straight.
- Coworkers keep posting pictures of gay porn on my door and human resources won’t do anything about it.
- My supervisor told me that she was curious and wants to get drunk and make out with me.
- A manager keeps telling me that I’m not fit to have a family and that gay couples shouldn’t be able to adopt.
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.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; 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. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.