LGBT Discrimination Attorney – Sexual Orientation Discrimination Lawyer – Gender Identity Discrimination Attorney
We are experienced Columbus, Ohio LGBT and sexual orientation discrimination lawyers. Our Ohio Employment attorneys are well versed in LGBT discrimination and handle cases related to gender identity discrimination and gender stereotyping discrimination.
What law applies?
Both federal and Ohio law have protections for individuals discriminated against because of sexual orientation and gender identity. If you are part of the LGBT (Lesbian, Gay, Bisexual, Transgender) community and are dealing with harassment, discrimination or poor treatment at work, we can help. Title VII of The Civil Rights Act of 1964 prohibits discrimination based on gender/sex, but sexual orientation itself is not explicitly mentioned. However, the Equal Employment Opportunity Commission (EEOC) has recognized claims under Title VII for sexual orientation discrimination and gender identity or gender stereotyping discrimination. The EEOC’s rationale is based on the idea that sexual orientation is a “sex-based consideration” and therefore inescapably linked to sex/gender. The EEOC’s website is a great resource for those interested in learning about LGBT discrimination: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
Sexual orientation discrimination occurs when an employee is subjected to an negative employment action, like termination, harassment or denial of benefits, because of their sexual orientation, gender identity or the sexual orientation of someone he or she is close to. Sexual orientation discrimination means treating someone differently solely because of their actual or perceived sexual orientation. Therefore, sexual orientation discrimination can occur in a situation where the employer perceives an employee to be of a certain sexual orientation, but the employer is mistaken. Visit the EEOC’s website for the latest litigation related to these claims: www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm.
Examples of LGBT-Related Sex Discrimination Claims
There are many other examples not listed here so contact one of our Columbus LGBT discrimination attorneys today.
Protection for Transgendered Individuals
In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the Commission held that intentional discrimination against a transgender individual because that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII.
Applying Macy, the Commission has also held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment, Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), and that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim, Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).
Gender Stereotyping Theory
Price Waterhouse v. Hopkins, a Supreme Court case, was important for expanding the definition of “sex” under Title VII. Hopkins was a female manager who was denied a partnership interest because she exhibited masculine traits. Price Waterhouse informed her that she could only increase her changes for a partnership interest by walking and talking more femininely, wearing makeup and taking a course at charm school, among others. The Court held that Hopkins was discriminated against because of sex and the theory of “sex or gender stereotyping” emerged. The Court said, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Price Waterhouse was the first case to define the word “sex” as both biological sex and gender, which includes “socially acceptable” roles and behaviors that define a woman as a woman and a man as a man. If the employer takes any of these roles and behaviors into consideration, they have taken gender into account.
After the Price Waterhouse decision, other courts began to recognize the gender stereotyping theory as it relates to discrimination claims under Title VII. For example, the Ninth Circuit found that the unrelenting barrage of same sex verbal abuse by male co-workers against the plaintiff constituted sex discrimination under Title VII. The Seventh Circuit came to a similar holding in Doe v. Belleville, where the plaintiff endured harassment from male co-workers based on his gender.
Next, the Supreme Court decided Oncale v. Sundowner Offshore Services, Inc. The plaintiff, Joseph Oncale, was subjected to sex-related, humiliating actions and comments from his make co-workers in the presence of the rest of the crew. The actions included physical assaults in a sexual manner and even a threat of rape. Oncale filed a claim of sex discrimination against his employer after he complained and felt the situation was not dealt with appropriately. The Court held that Title VII also protects same-sex harassment between heterosexual men.
In 2004, the Sixth Circuit, in a case from Ohio, was the first federal court to apply the gender stereotyping theory to transgendered plaintiffs in Smith v. City of Salem. Plaintiff Smith worked for the City of Salem Fire Department. When he began exhibiting a more feminine appearance, he spoke with his supervisor about his gender identity disorder. The supervisor promised he’d keep the conversation confidential but he did not and the city began to hatch a plan to terminate his employment, based on his gender identity disorder. The Sixth Circuit held that Smith had a valid claim under Title VII “because of sex” as a result of his non-conforming gender behavior. Specifically, the Court said, “discrimination against a plaintiff who is a transsexual- and therefore fails to act and/or identify with his or her gender- is no different from the discrimination directed against Hopkins in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman.”
Discrimination Based on Sexual Orientation
In Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.
The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex.
That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.
Issues such as these are on the rise. The Columbus LGBT discrimination lawyers at The Friedmann Firm will fight for you.