Does Title VII and Ohio law Prohibit Discrimination/Retaliation Based on Sexual Orientation (Gay, Lesbian, Bi-sexual, Transgender)?

Ohio Sexual Orientation Discrimination Attorneys:

Sexual orientation discrimination continues to be a contentious civil right facing millions of Americans. Courts around the country have continued the movement towards protecting employees against discrimination and/or retaliation because of sexual orientation (gay, lesbian, bi-sexual, or transgender). At some point in the future, federal and Ohio law will provide full protection against this conduct. However, we are not at that point, yet. This article focuses on the current protections under the law. If you are gay, lesbian, bi-sexual, or transgender, you are still protected against sexual orientation discrimination if you do not conform with traditional sex stereotypes (explained below) and are discriminated/retaliated against because of the non-conformity.

Under Title VII of the Civil Rights Act of 1964 (Title VII) 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. See Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, (6th Cir. 2011). (Ohio law has not yet extended protection).

Despite the fact that sexual orientation discrimination itself is not an actionable claim under current Federal and State (Ohio) law, federal Courts across the country have been expanding protection for related claims. Indeed, incremental changes have over time broadened the scope of Title VII’s protections of sex discrimination in the workplace.

Recently, on November 4, 2016, a U.S. District Court of the Western District of Pennsylvania (3rd Circuit) denied an employer’s motion to dismiss the Equal Employment Opportunity Commission’s (“EEOC”) claim on behalf of a gay male against an employer. Among other claims, the EEOC alleged that the gay male was constructively discharged due to a hostile work environment because the male was discriminated against based on his sexual orientation (i.e. he is gay). The EEOC alleged that during his employment, he was subjected to disparaging comments referencing his sexual orientation that created a hostile work environment, which more or less forced him to leave his place of employment. The employer requested that the Court dismiss the case and argued that sexual orientation is not a protected class (i.e. it can discriminate/retaliate against the male employee because he is gay).

The Court denied the employer’s motion to dismiss and held that “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation.” Accordingly, the EEOC’s claim properly stated a claim for relief under federal law. See U.S. Equal Employment Opportunity Commission v. Scott Medical Center, P.C., Case No. 16-225, 2016 WL 6569233 at *5-6 (W.D. Penn., Nov. 4, 2016).

Although federal courts in the 6th Circuit (Ohio, Michigan, Tennessee, and Kentucky) have not recognized actual sexual orientation (i.e. you are fired because you are gay/lesbian/bi-sexual/transgender), they do protect against sex discrimination when the individual does not conform with traditional sex stereotypes, which is explained in detail below.

Courts Recognize Sex Discrimination When the Claim is Based on “Non-Conformity with Traditional Sex Stereotypes”

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the U.S. Supreme Court held that harassment directed at a person because that person does not conform to traditional stereotypes is a form of sex discrimination prohibited by Title VII. According to Price Waterhouse, it is apparent that the female employee was tougher than females are traditionally viewed. Comments like females should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” not be a “macho,” or that females should take a “course on charm school” were indirect evidence of discrimination because of sex (i.e. a female not conforming to traditional stereotypes of how females should be). Since this case, courts have continued to expand upon the meaning of “does not conform to traditional sex stereotypes” in the context of both male and female traditional sex stereotypes.

The Sixth Circuit (the federal circuit, which includes Ohio) also recognizes claims of sex discrimination when males or females are discriminated/retaliated against because he or she does not conform to traditional sex stereotypes. Indeed, where men are penalized for acting femininely, the disparate treatment (i.e. penalizing him) is “because of sex” and prohibited under federal law. See Smith v. City of Salem, 378 F.3d 566, 674 (6th Cir. 2004).

In Koren v. The Ohio Bell Telephone Co. (Northern District of Ohio, 2012), the Plaintiff-employee 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. Importantly, the Plaintiff did not allege discrimination because he was gay. Rather, he alleged that by taking his husband’s last name, he did not conform to traditional sex stereotypes. As a result, the Court allowed Plaintiff’s case to move forward on the theory of gender non-conformity.

This case again demonstrates the difference between a sexual orientation discrimination claim, which is not currently protected by Title VII or Ohio law, and a gender stereotyping claim, which is an increasingly recognized form of sex discrimination.  The claim of gender stereotyping 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.

The Smith and Koren decisions, among others, have dramatically changed the landscape of sex discrimination cases. Under Smith and Koren, all other classes of individuals who engage in gender non-conforming conduct are granted Title VII protection.

As a result, employers’ traditional dress and grooming policies may also be challenged to the extent they require conformance to traditional gender roles, e.g., requiring women to wear skirts or make-up, or preventing men from doing so.

The Ohio Sexual Orientation attorneys at Bryant Legal, LLC will continue to monitor this ever-changing area of sex discrimination. If you believe you have been discriminated and/or retaliated against because of your non-conforming gender role, contact us immediately so we can immediately protect your rights.

Sexual Harassment – Top 10 Steps To Take If You Are a Victim of Workplace Sexual Harassment

Ohio Sexual Harassment and Sex Discrimination Attorneys

As a reminder, Federal and Ohio law make it unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

In the event you are a victim of workplace sexual harassment, the following tips should provide some general guidance with respect to what you should do. Please note that each factual scenario is different, so the following are general tips and should not be taken as legal advice to your specific situation. For more information, please contact an employment attorney at Bryant Legal, LLC to discuss in more detail so that we can immediately protect your rights.

Top 10 Tips To Do If You Are a Victim of Workplace Sexual Harassment:

(1) Do Not Ignore the Harassment

  • Talking about sexual harassment can be uncomfortable, but speaking up about it with other employees who may also be experiencing similar conduct can empower you.

(2) Make it Clear to the Harasser that the Conduct is Unwelcome

  • An essential element of a sexual harassment claim is that the conduct must be unwelcome. Harassers sometimes contend that their victims welcomed and enjoyed their words and actions. Although it can feel uncomfortable or even frightening to object, you must unequivocally tell the harasser to stop the behavior.

(3) Not All Offensive Behavior is Sexual Harassment under the law

  • As mentioned above, whether certain behavior constitutes sexual harassment is considered on a case-by-case basis. Thus, it is especially important to talk to a lawyer who knows about sexual harassment law and how to deal with such behavior.

(4) Keep Careful Notes on what happened, but not on employer-owned equipment

  • You should keep any notes, memos, letters, emails, textual messages, gifts, or other tangible evidence from the harasser. Be careful how and where you record your evidence. For example, communications using company equipment are not confidential and can be used against you. Other examples that can be used against you because it may contain person information is social media.

(5) Report and Oppose the Conduct Immediately

  • Why? Your report does two important things. First, it puts your employer on notice that the sexual harassment occurred. Second, it provides your employer with an opportunity to correct the problem and make it stop. If it does not stop, you still have legal options, but consult with a sexual harassment attorney first.

(6) Human Resources is Not on Your Side – Anything you tell HR can be revealed to others in the company

  • Do not assume that anything you tell them is going to be kept confidential. The HR department may report your complaint to their supervisors and to other managerial employees. Although Human Resources is ideally in place to help the company’s employees, often times it does not help. Rather, it makes a record against you to cover for the company. After all, the company also pays them as employees so HR employees have the company’s interest as the top priority.

(7) Do Not Quit Your Job

  • Quitting your job provides an employer with the argument that you did not give it enough time to correct the problem. Quitting could also affect your ability to recover your lost wages and make it even harder to collect unemployment benefits (due to “job abandonment”).

(8) Retaliation is Unlawful

  • You might have a stronger retaliation claim if you make a reasonable good faith complaint of harassment to your employer and your employer subsequently takes any “adverse action” against you because of the complaint.

(9) Keep Performing Your Job Well

  • Making a complaint about sexual harassment does not give you permission to stop performing your job to the best of your ability or excuse you from the same standards you had to meet before the conduct started or you complained. After all, Ohio is an at-will state. Thus, if you stop performing your job well, your employer has a “business justification” for taking adverse action against you.

(10) Get Legal Advice from an attorney who knows about sexual harassment law as soon as you can

  • Due to the fact that sexual harassment is a serious and often frightening experience, your rights need to be protected at every step of the way. Talk to an attorney who handles these matters and takes them just as seriously as you do. This is especially important if you are considering quitting your job.

For more information about your situation involving workplace sexual harassment, contact us today.

Ohio National Origin Discrimination Update: EEOC Issues New Enforcement Guidance

In the wake of a particularly divisive Presidential election where immigration was a frequent topic, the purpose of this post is to provide a timely reminder of the law prohibiting national origin discrimination in all aspects of employment. This post also provides a brief overview of how the new Equal Employment Opportunity Commission (“EEOC”) enforcement guidance outlines examples of national origin discrimination in multiple facets. Should you have any questions about whether you have been discriminated against because of national origin, do not hesitate to contact the attorneys at Bryant Legal, LLC to discuss your legal options.

Title VII of the Civil Rights Act of 1964 and Ohio law prohibit National Origin discrimination.

National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group. (See 29 C.F.R. § 1606.1 (defining national origin discrimination “broadly”)) Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin. (See 42 U.S.C. § 2000e-2; 29 C.F.R. § 1606.2) National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.

National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, charges filed by Asian Americans may involve allegations of discrimination motivated by both race and ancestry (national origin). Similarly, discrimination against people with origins in the Middle East may be motivated by race, national origin, or even the perception that they follow particular religious practices. As a result, the same set of facts may state claims alleging multiple bases of discrimination.

On November 18, 2016, the EEOC released a new enforcement guidance on national origin discrimination. The EEOC’s continued focus in this area is the agency’s first interpretation of the law on national origin discrimination since its 2002 compliance manual. The guidance notes that the “American workforce is increasingly ethnically diverse;” that the largest numbers of immigrants to the United States in recent years have been from Asia and the Middle East; and that while immigrants are present in “every occupation,” they are highly represented in many of the country’s highest growth jobs, such as those in the service sector.

To that end, the guidance emphasizes the broad definition of national origin discrimination. As noted above, it includes “discrimination because an individual (or his/her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” A “certain place” may include a country, former country (such as Yugoslavia), or a region (such as Kurdistan). Physical, cultural, or linguistic characteristics may include accents or traditional styles of dress. National origin discrimination also encompasses adverse actions based on perceived ethnicity, as well as actions based on an individual’s association with others having a particular national origin.

With respect to accents and language ability, the EEOC explains that an employment decision legitimately may be based on an employee’s accent or fluency in English only if those traits materially interfere with job performance. To meet this standard, an employer must show that effective spoken communication in English is required to perform the duties of the job and that the presence of an accent materially interferes with the employee’s ability to communicate in English.

Retaliation is Prohibited

Importantly, Title VII (and Ohio law) prohibits retaliation, or reprisal, against an individual because he or she has opposed unlawful national origin discrimination or participated in the EEO process by filing a charge or complaint, testifying, assisting, or participating in any manner in an employment discrimination investigation, proceeding, or hearing. (See 42 U.S.C. § 2000e-3(a)).

There are three essential elements of a claim that an employer action was retaliatory:

  • Employee Protected Activity – opposition to discrimination or participation in any EEO investigation, proceeding, or hearing;
  • Materially Adverse Action – any adverse treatment by the employer (beyond a petty slight or a trivial annoyance), that might dissuade a reasonable person from participating in protected activity; and
  • Causal Connection – between the protected activity and the adverse treatment.

The most obvious types of materially adverse actions are denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge because the individual engaged in protected activity. Other types of materially adverse actions include threats, warnings, reprimands, transfers, negative or lowered evaluations, or verbal or physical abuse (whether or not it rises to the level of creating a hostile work environment) because an individual engaged in protected activity.

Among other issues discussed by the new EEOC enforcement guidance on national origin discrimination, the attorneys at Bryant Legal, LLC are prepared to advocate on your behalf. Should you have any questions, contact an employment discrimination attorney at Bryant Legal, LLC today.

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