Since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage, lawmakers and advocacy groups have continued to focus on issues of LGBTQ+ discrimination in the workplace and other venues. This led to the June 15, 2020 U.S. Supreme Court decision in three consolidated sexual orientation and gender identity discrimination cases.
The decision held that Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination on the basis of sexual orientation and gender identity. The majority found that “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex [in violation of Title VII].”
Impact From Federal to Ohio Law
Federal law now unequivocally prohibits discrimination in the workplace based on an employee’s LGBTQ+ identity. Ohio civil rights law typically follows federal Title VII precedent. Therefore, employers need to be aware of potential liabilities under state and federal laws. An Ohio employer with four or more employees is subject to the Ohio Fair Employment Practices Act (OFEPA). Ohio employers with 15 or more employees are subject to both Title VII and the OFEPA. Though the laws are essentially the same under state and federal law, under Ohio law, the damages that can be awarded are greater.
Local municipalities in Ohio have also passed legislation protecting LGBTQ+ rights, to varying degrees. Local laws are different than federal and state laws because they don’t provide as many remedies to discrimination, but the laws themselves can be more inclusive, meaning they can also protect from discrimination in things like housing. Together with protections under state and federal law, several localities have ordinances providing total protection from discrimination in employment and housing based on gender identity and sexual orientation. Other localities only have some additional protections.
Federal Government and “Bathroom Bills”
The Equal Employment Opportunity Commission (EEOC) is the federal agency that handles investigations into workplace discrimination. They maintain their previous position that employers treating transgender employees differently from other employees about bathroom use constitutes sex discrimination. It is likely based on the recent U.S. Supreme Court decision that other courts and agencies will follow suit.
The Department of Justice has also said that prohibiting an employee from accessing the bathroom associated with his or her gender identity violates Title VII. However, some previous guidance on this issue that applied to bathroom use in federally funded schools was rescinded by the Department of Justice and the Department of Education under the Trump administration, which makes it unclear if this position still stands.
What Employees and Employers Should Know
Employers should continue to promptly and thoroughly investigate all complaints of LGBTQ+ discrimination and take remedial action in response to discrimination. Employers should prohibit gender identity and sexual orientation harassment under company anti-harassment policies and train staff on the prevention of LGBTQ+ discrimination. It is equally important that employers sensitize managers on how to respond to LGBTQ+ discrimination complaints, including the duty to report LGBTQ+ discrimination when necessary. Employers should base their hiring, discipline, and other employment-related decisions on documented, legitimate and operationally sound rationale.
Ohio employees who believe they have been discriminated against or harassed based on their sexual orientation or gender identity may submit internal complaints directly to their employer. Employees may also file a charge of discrimination with the EEOC (if the employer has at least 15 total employees), with the Ohio Civil Rights Commission (OCRC) (if the employer has at least 4 total employees), or potentially with a local municipality if it has passed anti-discrimination legislation. Filing charges with either the OCRC or the EEOC in a timely manner is important because it is a prerequisite to filing a lawsuit under Title VII. Charges submitted to the OCRC must be filed within 180 days of the date of the alleged discriminatory conduct or within 300 days if filed with the EEOC.
How an Attorney Can Help
An attorney can answer questions about the Supreme Court’s decision, anti-harassment policies, workplace training for management and employees and other preventive practices. An attorney can also advise employees on their rights to a discrimination and harassment-free workplace.