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Ohio appears to be making slow progress towards sexual orientation protections in the workplace, but as with many states across the country, there’s still a lot of work to be done. Laws prohibiting consensual homosexual activity were declared unconstitutional in the 2003 US Supreme Court Case of Lawrence v. Texas. In 2015, Obergefell v. Hodges legalized same-sex marriage. Neither of these two cases, however, prevented employment discrimination on the basis of LGBTQ status.
Employment discrimination against LGBTQ individuals is generally illegal in Ohio, although gaps in the law exist. If your employer fires you because they believe you are gay, for example, you probably have a discrimination claim even if you are not gay. The same applies in most cases if you are fired or denied a promotion because you are transgender. Many other types of discrimination, such as harassment, can justify a workplace discrimination claim.
Legal Weapons You Can Use to Fight LGBTQ Discrimination in the Workplace
People who work in Ohio have two main sources of protection against LGBTQ discrimination in the workplace–federal law and local ordinances. The most important federal statute that you might use to protect yourself is Title VII of the Civil Rights Act of 1964. Certain local governments in Ohio have also passed laws banning LGBTQ discrimination.
At the state level virtually no effective protections exist. The Ohio Fairness Act, however, is a state remedy that will become available in the future if it is passed by the Ohio state legislature.
LGBTQ Employment Discrimination Under Federal Law
In Ohio, federal law now offers broad protection against LGBTQ employment discrimination, to the extent that federal law applies at all. Title VII only applies to employers with 15 or more employees.
How Bostock v. Clayton County Relates to Title VII
In June 2020 the US Supreme Court handed down a decision in Bostock v. Clayton County, in which it ruled that discrimination based on actual or perceived sexual orientation and gender identity or expression count as discrimination based on sex under Title VII. Before Bostock, discrimination based on sex was thought to be limited to gender discrimination.
Employment discrimination is not limited to refusing to hire LGBTQ employees or firing someone because they are gay. It also includes the following forms of discrimination:
- Denying someone training, advancement or promotion opportunities;
- Denying someone employment-related benefits such as health insurance;
- Creating or maintaining a hostile work environment (a persistent pattern of homophobic jokes, for example); and, depending on their nature
- Publishing a recruitment ad that includes a preference or prohibition based on LGBTQ status.
Unlawful LGBTQ discrimination is not necessarily limited to these activities–other acts or omissions might also count as illegal discrimination. If your employer refuses to allow you to give a presentation at work because “your voice sounds so effeminate”, this might count as LGBTQ discrimination. In the cauldron of day-to-day experience, there is no absolute formula for discrimination.
Enforcing Your Rights at the Federal Level
If you believe that you have been discriminated against due to your real or perceived LGBTQ status, you can take action at the federal level by filing a Title VII LGBTQ discrimination claim with the Equal Employment Opportunity Commission (EEOC).
If you exhaust your remedies with the EEOC without achieving a satisfactory result, you can file a Title VII lawsuit in federal court. Alternatively, if you believe that you have a strong claim, you might consider seeking private negotiations with your employer, who is likely to welcome an alternative to an EEOC investigation or a federal lawsuit.
You may demand the following remedies for violation of Title VII, depending on your particular circumstances:
- Back pay and benefits;
- Out-of-pocket expenses;
- Legal expenses, including attorney’s fees;
- “Front pay” (lost income due to the discrimination you suffered);
- Emotional distress;
- Punitive damages;
- Compelled hiring, reinstatement or promotion (as an alternative to “front pay”);
- Posting of public notices concerning the employer’s violation and employees’ legal rights.
It is relatively unlikely that you will be found eligible for all of the foregoing remedies. Furthermore, there are limits on the amount of damages for lost income, emotional distress, and punitive damages you can demand, based on the size of the company. The maximum for a company of more than 500 employees, for example, is $300,000 for these particular items of damages. You can still be awarded more than $300,000 for your total claim.
About one out of every three Ohio residents lives in a local jurisdiction that has enacted an ordinance that bans employment discrimination against LGBTQ people.
- Summit County prohibits discrimination on the basis of sexual orientation and gender identity or expression in county hiring and employment practices.
- Akron, Canton, Cincinnati, Cleveland, Columbus, Dayton, Toledo and Youngstown have all passed ordinances banning LGBTQ employment discrimination, as have a number of smaller communities.
- Several other jurisdictions, such a Hamilton County (where Cincinnati is located) have enacted LGBTQ employment discrimination ordinaces that apply to government hiring only.
Since each ordinance is different, it is difficult to generalize about their effectiveness as a whole. Some of them protect against sexual orientation discrimination but not gender identity or expression, while others are more inclusive.
LGBTQ Employment Discrimination Under Ohio State Law
In contrast with the federal judiciary’s stance in Bostock v. Clayton County, Ohio courts have not held that Ohio state law’s ban on sex discrimination in employment covers LGBTQ discrimination. This judicial silence has left LGBTQ individuals with few state law options. Except as mentioned below, aggrieved individuals must take action at the federal or local level, assuming that they live in a locality that has taken legal action to combat LGBTQ discrimination in the workplace.
In Ohio, an executive order is an order issued directly by the Governor. In 2001, Governor John Kasich issued an executive order banning discrimination based on sexual orientation with respect to state hiring. In December 2018, he issued a new order that expanded these protections to include gender identity and expression. In January 2019, Governor Kasich’s successor, Republican Mike DeWine, issued a new executive order that restated Governor Kasich’s second order.
Although Ohio’s LGBTQ community welcomed these orders, dependence on executive orders is a precarious state of affairs. After all, an executive order can be undone with the stroke of a pen as soon as another governor takes office. Legislative action, by contrast, is not so easy to undo.
The Road Ahead: The Ohio Fairness Act
The Ohio Fairness Act is a proposed state law that, if passed, would prohibit discrimination based on sexual orientation and gender identity or expression. The law would be comprehensive–it would ban not only employment discrimination by both public and private employers with 4 or more employees, it would also ban discrimination in housing and public accommodations.
The Ohio Fairness Act would plug a large loophole in Ohio’s existing legal regime since at this point no statewide law prohibits LGBTQ discrimination. The bill enjoys bipartisan support, and hopes are high that it will become law sometime in 2021.
Contact an LGBTQ Employment Discrimination Lawyer
The law relating to LGBTQ discrimination is complex. It is so new that not many court decisions have established precedents in this area, meaning that it is highly subject to interpretation–and persuasion if you retain the right lawyer. Hiring the right lawyer is probably the best action you can take to advance your LGBTQ employment discrimination claim. Contact us today to set up a free consultation to see how we can help you.