Q: What has happened in Ohio to address LGBTQ rights since the U.S. Supreme Court's decision legalizing gay marriage?
A: Since the 2015 court decision, lawmakers and advocacy groups have shifted their focus to issues of LGBTQ discrimination in the workplace and other venues. Ohio currently has no state law prohibiting workplace discrimination based on LGBTQ status, but Ohio House Bill 160, introduced in March 2017, proposes to prohibit discrimination based on sexual orientation or gender identity or expression.
Q: What must Ohio employers do about LGBTQ workplace rights?
A: Neither the Ohio nor federal discrimination laws have been conclusively established by the legislature or the courts to clearly and unequivocally prohibit discrimination in the workplace based on LGBTQ status. However, employers should be aware of potential liabilities under state and federal laws. For example, the Equal Employment Opportunity Commission (EEOC) alleges that sexual orientation discrimination is a form of sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. An Ohio employer with four or more employees is subject to the Ohio Fair Employment Practices Act (OFEPA). Ohio employers with 15 or more employees are subject to both Title VII and the OFEPA.
It is unclear whether mandates related to LGBTQ rights are enforceable, but the landscape of LBGTQ rights is constantly changing. Employers should stay abreast of these changes to ensure that they are compliant with the law.
Q: Do any Ohio cities or counties provide LGBTQ rights protection?
A: A growing number of local municipalities in Ohio have passed legislation protecting LGBTQ rights, to varying degrees: Athens, Bowling Green, Canton, Cincinnati, Cleveland, Columbus, Coshocton, Dayton, East Cleveland, Newark, Oxford, Toledo, and the Village of Yellow Springs. Also, 14 municipalities and counties prohibit public employment discrimination based on sexual orientation and/or gender identity: Akron, Cleveland Heights, Cuyahoga County, Franklin County, Gahanna, Hamilton, Hamilton County, Laura, Lima, Lucas County, Montgomery County, Oberlin, Summit County, and Wood County.
Q: What kinds of protections are offered in Ohio?
A: Localities such as Akron, Athens, Bowling Green, Cincinnati, Cleveland, Columbus, Dayton, East Cleveland, Oxford, Toledo, and Yellow Springs have ordinances providing full protections from discrimination in employment and housing based on gender identity and sexual orientation. Other localities offer some, but not full protections (e.g., Lakewood, North Olmsted, and Shaker Heights provide nondiscrimination laws that include housing, but not employment).
Q: What federal changes may affect Ohio employers and employees?
A: Federal agencies such as the EEOC and the Department of Justice have adopted a more directed, aggressive approach to LGBTQ issues than in the past. Though the EEOC began focusing on LGBTQ employment rights in 2012, it has been filing an increasing number of lawsuits against employers. In March 2016, the EEOC announced the filing of its "first" sexual orientation discrimination suits against private employers. The EEOC claimed that sexual orientation discrimination is included in Title VII of the Civil Rights Act of 1964's prohibition against "sex" discrimination. In this way, the EEOC is trying to broaden the scope of what has been traditionally prohibited by Title VII without requiring any change to the text of the law itself. It is unclear what federal changes may be forthcoming.
Q: How has the federal government responded to the "bathroom bills" that some states have passed to make people use the bathroom associated with their biological sex rather than their gender identity?
A: The Department of Justice has said that prohibiting an employee from accessing the bathroom associated with his or her gender identity violates Title VII. Under the Trump Administration, however, the Department of Justice and the Department of Education withdrew and rescinded prior guidance documents which directed federally funded schools to let transgender students use facilities associated with their gender identity. In a new guidance letter, the departments explain that the prior documents took the position that Title IX requires access to sex-segregated facilities based on gender identity, but did not provide sufficient legal analysis or explain how this position is consistent with the Title IX's language. The letter from the departments does not provide additional guidance, but states that they plan to more completely consider the relevant legal issues.
The federal courts are not in complete agreement on the issue. There has been a clear trend, however, in courts holding that sex discrimination prohibitions cover bias based on gender identity. For example, in May, the 7th Circuit in Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., held that a school district in Wisconsin couldn't prevent a transgender male high school student from using the boys' bathroom. The Supreme Court was set to decide the same issue early this year, but sent the case back down to the 4th Circuit.
The EEOC currently maintains its previous position, specifying that employers who treat transgendered employees differently from other employees regarding bathroom use constitutes sex discrimination.
Q: I own a small business. What must I know about LGBTQ workplace rights?
A: You should know what laws apply to your workplace. This includes knowing whether the municipality where your business is located has a law prohibiting LGBTQ discrimination. If you have facilities in more than one area of the state, different rules may apply. "LGBTQ" encompasses both gay and transgendered individuals, but some laws, for example, may address discrimination based only on sexual orientation.
Q: How can I properly protect my employees as well as my business?
A: Base your hiring, discipline, and other employment-related decisions on documented, legitimate, and operationally sound rationale. This puts you in the best position to defend against workplace discrimination claims.
This "Law You Can Use" column was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Susan Keating Anderson, a partner in the firm of Walter Haverfield LLC, and Cleveland attorney Patrick O. Peters of Jackson Lewis P.C.