Is there protection under the law for discrimination/retaliation based on Sexual Orientation (Gay, Lesbian, Bi-Sexual, Transgender)?

As a plaintiff’s side employment lawyer (employee side) I have an unmatched sense of fulfillment when I am able to provide advice or assistance to an individual or group of individuals that are standing up to their employer for what they know is right and for what the law says is wrong. Conversely, I often consult with employees in awful employment situations that have no legal redress. It pains me to tell an individual that, although his/her situation is clearly wrong, the law does not recognize it as unlawful. The two most commons situations that arise are (1) workplace bullying and (2) discrimination based on sexual orientation (discriminating against an employee because he/she is gay, lesbian, bi-sexual, or transgender). Courts, however, are beginning to signal a trend that hopefully Congress will recognize. The future will provide full protection against this conduct but we aren’t there yet. This article focuses on the current protections under the law.

Title VII of the Civil Rights Act of 1964 provides that “it shall be an unlawful employment practice for an employer…to discharge an individual, or otherwise discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of… his/her sex….” 42 U.S.C. 2000e-2(a). Under Title VII, sexual orientation is not a prohibited basis for discriminatory acts. Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, (6th Cir. 2011). (Similarly, Ohio law does not extend to sexual orientation Cooke v SGS Tool Co.)

Despite the fact that sexual orientation discrimination is not an actionable claim under current Federal and State (Ohio) law, the Courts have been expanding protection for related claims.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) the U.S. Supreme held that harassment directed at a person because that person does not conform to traditional sex stereotypes is a form of sex discrimination prohibited by Title VII. Since Price Waterhouse, the Courts have been expanding on the meaning of “does not conform to traditional sex stereotypes.”

The Sixth Circuit (the federal circuit which includes Ohio) has addressed the issue on several occasions. Most recently in Koren v. The Ohio Bell Telephone Co. the Plaintiff (Koren) alleged that his employer discriminated against him because he took his husband’s name after they married, but did not similarly discriminate against women for doing the same. Koren did not allege discrimination because he was gay. The Court allowed Koren’s case to move forward on the theory of gender non-conformity.

The case demonstrates the difference between a sexual orientation discrimination claim, which is not protected by Title VII or Ohio law, and a gender stereotyping claim, an increasingly recognized form of sex discrimination. The latter claim removes actual sexual orientation from the analysis, and relies only on establishing that the plaintiff was discriminated against because he or she did not conform to traditional gender stereotypes.

Also, the Sixth Circuit recognizes claims of sex discrimination where men are penalized for acting femininely, as such treatment is “because of sex.” Smith v. City of Salem, Ohio, 378 F.3d 566, 674 (6th Cir. 2004).

In conclusion, the law (Congress) has yet to recognize protection for discrimination based on sexual orientation. The Courts, however, continue to expand the protection under the gender stereotyping theory. It appears the Courts are indicating to Congress to expand the Title VII to include long overdue protection.

Here are links to some other articles and information on the topic:

National Center for Lesbian Rights – Federal Case Compilation.

EEOC Fact Sheet on Sexual Orientation Discrimination

ACLU state-by-state Non-Discrimination Laws