Tuesday, June 2, 2009

Do you know? Sexual orientation and gender identity discrimination

It strikes me as appalling that in the year 2009 there are still minority groups against whom it remains legal to discriminate. An employer can blatantly state that the reason for an employee’s termination is that employee’s sexual orientation, with little risk of legal repercussion. Recognizing this anachronism, some courts have permitted claims by creative attorneys under Title VII for sexual stereotyping. Such recognition, however, varies from judge to judge and court to court, with no uniformity or certainty.

If the Ohio legislature has its way, however, this type of discrimination will end. House Bill No. 176 seeks to add “sexual orientation, gender identity and expression” to the categories of protected classes against whom it is illegal to discriminate in employment decisions in Ohio. Under the statute as proposed, “Sexual orientation” would include “actual or perceived heterosexuality, homosexuality, or bisexuality,” and “gender identity and expression” would include the gender-related identity, appearance, or expression of an individual regardless of the individual’s assigned sex at birth.” The latter is much more controversial than the former, and will also likely be the subject of vigorous debate in Washington D.C. over a potential federal ban of the same types of discrimination.

Many companies have already made the personal decision to prohibit these types of discrimination. For those that have not, if sexual orientation and/or gender identity discrimination becomes illegal policies will have to be rewritten and employees and management will have to be retrained. Keep watching this space for further updates on this important issue.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.