My apologies if the headline baited you in, but today is April Fools’ Day, and, no, neither Congress nor Ohio’s legislature is close to amending any workplace discrimination laws to include sexual orientation as a protected class.
But, they very much need to.
I read with great interest a series of opinion pieces in last week’s New York Times, entitled, If Gays Can Marry and Be Fired for Doing So. Among the authors was EEOC Commissioner (and Twitter friend) Chai Feldblum, who argued that marriage equality laws demonstrate that Title VII already protects sexual-orientation discrimination as sex discrimination. On Twitter, I asked Chai if, in light of her op-ed, she believes that we do not need to amend Title VII expressly to include sexual orientation. Her response?
We still need (a strong) ENDA for clarity & certainty. MT @jonhyman: Does this mean you don’t think we need ENDA? http://t.co/HgtvN2ksk3If you need any greater reminder of the need for the Employment Nondiscrimination Act (ENDA), which would amend Title VII to include sexual orientation and gender identity, look no further than Burns v. The Ohio St. Univ. College of Veterinary Medicine, decided last week by an Ohio appellate court. That case dismissed a claim by a lesbian veterinary resident because Ohio’s workplace discrimination laws do not cover “sexual orientation.”
— Chai Feldblum (@chaifeldblum) March 25, 2014
Each appellate district in this state that has considered such a claim has concluded that the term “sex” in R.C. 4112.02(A) does not include sexual orientation.… Likewise, courts analyzing the analogous provision of Title VII have held that, for purposes of that law, “sex” does not include sexual orientation.…
In this appeal, appellant unabashedly argues for a change in the law. However, this claim and this court are not the forum for achieving the change that appellant seeks.… Legislative measures proposing to amend R.C. Chapter 4112 and Title VII to add the term “sexual orientation” have been, as yet, unsuccessful.… Under our system of separation of powers, this court’s role is limited to interpreting and applying R.C. Chapter 4112 as it currently exists.Readers, now is the time to end sexual orientation and gender identity in the workplace. It is foolish that we, as a supposedly enlightened society, cannot decide that it’s not okay to discriminate. Let’s end this foolish practice, and send a signal to all of our citizens that we truly are the land of the free and the home of the brave.