Local, State and Federal Governments Consider LGBT Workplace Rights

Currently, no federal or Ohio statutes specifically prohibit job discrimination based on sexual orientation and/or gender identity in the private sector (or in many parts of the public sector). Legislative efforts have been underway on local, state and federal levels to protect lesbian, gay, bisexual and transsexual (LGBT) individuals in the workplace, but it is unclear how these efforts may be affected in the future. 

Q: What is being done on the federal level to address LGBT workplace rights?
A: On the federal level, a current executive order prohibits discrimination against federal government employees based solely on sexual orientation, and another executive order prohibits job discrimination by federal contractors on the basis of sexual orientation and gender identity. In addition, the U.S. Congress is considering the Employee Non-Discrimination Act (ENDA), which would protect all employees (private and public sector) from job discrimination based on sexual orientation and gender identity.

Q: What is the Equal Employment Opportunity Commission’s (EEOC) position on federal laws that protect LGBT rights in the workplace?
A: Several cases that the U.S. EEOC has decided in recent years demonstrate its position relative to LGBT rights. In 2012, the Commission ruled in Macy v. Dept. of Justice that Title VII of the Civil Rights Act of 1964, which prohibits discrimination against an individual on the basis of gender identity or transgender status, applied to the case.

In 2013, the Commission ruled in Brooker v. U.S. Postal Service that lesbian, bisexual and gay individuals may experience discrimination on the basis of sex, including, but not limited to, sexual harassment, and that sex discrimination includes adverse actions (such as employment restrictions) taken because of someone’s failure to conform to sex-stereotypes.

The Commission also takes the position that lesbian, gay and bisexual individuals have a right to file a sex discrimination complaint through the federal sector EEO complaint process. 

The Commission asserts that sexual orientation discrimination is a form of sex discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. In March 2016 the EEOC announced that it filed its first set of suits against private employers under the premise that sexual orientation discrimination violates Title VII.

Q: Does any Ohio law prohibit LGBT workplace discrimination?
A: No. There is currently no state law that addresses LGBT workplace discrimination. However, Governor Kasich signed an executive order that prohibits discrimination against state government employees on the basis of sexual orientation. This order does not, however, prohibit discrimination on the basis of gender identity. Also, Ohio House Bill 537 was introduced in April 2016. This bill proposes to outlaw employment and housing discrimination based on sexual orientation. As currently written, the bill does not protect against discrimination based on transgendered status.  

Q: What is being done at the local level to help protect LGBT employees?
A: Within Ohio, more than a dozen municipalities (including most of the state’s larger cities) now prohibit discrimination based on sexual orientation and/or gender identity in private and public employment. These include the cities of Athens, Bowling Green, Canton, Cincinnati, Cleveland, Columbus, Coshocton, Dayton, East Cleveland, Newark, Oxford, Toledo and the Village of Yellow Springs. 

Also, an additional 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.  

12/5/2016

This “Law You Can Use” article was provided by the Ohio State Bar Association. It was originally prepared by Susan Keating Anderson, a partner in the Education Law Practice Group of Cleveland-based Walter | Haverfield, LLP. It was updated by Cleveland attorney Patrick O. Peters of Jackson Lewis P.C. and attorney Shaka Sadler of the same firm.​​​

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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