Sexual Orientation and Gender Identity Gaining Momentum as Protected Classifications

Last week, the Ohio House of Representatives passed a bipartisan measure entitled the Equal Housing and Employment Act, H.B. 176. This Act adds sexual orientation and gender identity to the list of protected classifications against which it is illegal to discriminate in housing, employment and public accommodation. This measure now advances to the Ohio Senate.

Ohio Revised Code Chapter 4112 currently prohibits employers from discriminating against employees or job applicants on the basis of their race, color, religion, gender, military status, national origin, disability, age, or ancestry. The Equal Housing and Employment Act seeks to add sexual orientation and gender identity to that list. Proponents of the Act hope this legislation will help attract and retain talent in Ohio. Approximately 12 other states have similar laws.

If enacted, this measure will likely not create a significant change in the status of discrimination laws for Ohio employers. Federal courts have already found that it is unlawful under Title VII to discriminate on the basis of gender identity and sexual orientation. Specifically, federal courts have held that it is unlawful sex discrimination for an employer to engage in “sex stereotyping,” which has been interpreted to include gender identity and sexual orientation. Thus, employers already cannot discriminate against an employee or job applicant because he or she fails to act or appear sufficiently masculine or feminine enough for the employer.

Author: Emily Wilcheck


Lactose Intolerant?

The Ohio Supreme Court recently ruled that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against by her employer on the basis of pregnancy when the former employee's deposition testimony revealed that the employer did not know the reason for her unauthorized breaks. Allen v. totes/Isotoner Corp., 2009-Ohio-4231, 2009 WL 2634592.

For approximately two weeks, LaNisa Allen had been taking breaks from her work station without her employer's knowledge or prior authorization. Her supervisor informed Ms. Allen that she was being terminated for her failure to "follow directions." Following her termination, Ms. Allen sued her employer for sex discrimination on the basis of pregnancy as prohibited by Ohio state law, because the reason she had been taking the breaks was to pump breast milk. The trial court granted the employer's motion for summary judgment, finding that discrimination on the basis of lactation is not the same as discrimination on the basis of pregnancy because the condition of lactating is not a condition relating to pregnancy but rather a condition relating to breastfeeding. The Twelfth District Court of Appeals affirmed the decision on appeal, but instead, based its decision on the fact that Ms. Allen was terminated plainly and simply for taking an unauthorized break. Ms. Allen appealed.

The Ohio Supreme Court accepted Ms. Allen's discretionary appeal to decide whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. Chapter 4112. However, the Court decided not to reach this issue because it found that the employer's legitimate, nondiscriminatory reason for Ms. Allen's termination caused her claim to fail. This was due to Ms. Allen's failure to produce evidence from which a jury could conclude that her employer's legitimate, nondiscriminatory reason for the termination was a pretext for discrimination based on Ms. Allen's pregnancy or a condition related to her pregnancy.

Although Justice Maureen O'Conner agreed with the Court's holding, she wrote a lengthy separate opinion to state that she would hold that lactation is protected by Ohio's discrimination statute and that the statute prohibits employment discrimination against lactating women. Justice Paul Pfeifer, the only dissenting Justice from the Court's per curiam opinion, took it one step further in writing that he would hold that not only are lactation activities protected under Ohio's sex discrimination law, but that a "clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation."

Unfortunately, the implication of this case for Ohio employers is clear as mud. Here, the combination of Ms. Allen's failure to request a lactation accommodation, along with her employer's lack of knowledge as to the reasons for Ms. Allen's unauthorized breaks, ultimately prevented a finding of liability. Had Ms. Allen produced some evidence that her lactation was the true motivation for her termination, the outcome may have been different. Instead, the Ohio Supreme Court stopped short of deciding whether lactation discrimination is prohibited. This issue will likely resurface, and if the viewpoints of Justices O'Conner and Pfeifer foreshadow what is to come, protection may extend to lactating employees, requiring employers to provide a lactation accommodation.

Author: Ann Eberts


Card Check Legislation put on the Back Burner

The Employee Free Choice Act (“EFCA”), also known as the “Card Check” legislation, appears to be on the back burner after facing mounting challenges from opponents. As originally proposed, EFCA would change federal labor law by allowing the formation of a new bargaining unit at a non-union company if a majority of workers simply sign authorization cards requesting a union. EFCA would also require the parties to submit to mandatory mediation and binding arbitration if the union and the employer are unable to reach an agreement on an initial contract within 90 days. Stiffer penalties would be imposed against employers found to have engaged in conduct that interferes with employees’ rights during union organizing. However, there is no provision for penalties against unions who interfere with employees’ rights during union organizing.

Many business owners and business associations consider EFCA to be a serious threat to their ongoing viability and have expressed their concerns to legislators. The business community’s concerns have not gone unnoticed. It was reported by the Las Vegas Review-Journal that Senate Majority Leader Harry Reid (D-Nev) responded to a question concerning EFCA at a Las Vegas Chamber of Commerce meeting on August 26, 2009 by indicating that “We have too many other things on our plate.”

While EFCA in its current form is no longer a top priority for Congress, it is anticipated that there will be a renewed push to pass a compromise version of the bill. It remains to be seen what compromises will be included.

Author: Ryan Bonina


Ohio Supreme Court to Review Entitlement to Leave Regardless of Length of Employment

The Ohio Civil Rights Commission (“OCRC”) and the Ohio Fifth District Court of Appeals take the position that it is unlawful under Ohio law to terminate employees who are temporarily disabled due to pregnancy and childbirth because they do not meet the employer’s minimum service requirement for taking leave. On July 29, 2009, the Ohio Supreme Court accepted review of the Fifth District’s decision in Nursing Care Management of America, Inc. v. Ohio Civil Rights Commission, to review this interpretation of Ohio law.

In this case, the Plaintiff employee required medical leave due to pregnancy, but she had not worked twelve months preceding the need for leave in order to qualify for leave under the employer’s policy. The employee was terminated when, after eight-months of employment, she required medical leave due to her pregnancy.

The appellate court upheld the OCRC’s interpretation of Ohio law as requiring maternity leave for a “reasonable period of time”, regardless of length-of-service policies. The employer argued that Ohio law allows employers to place a length-of-service requirement on leave time provided to pregnant employees, as long as that length-of-service requirement is evenly applied. In upholding its interpretation of the law, the court was not persuaded by the fact that male employees could be terminated on account of medical conditions if they had not met the minimum 12-month service requirement, while pregnant employees would be entitled to maternity leave.

In addressing the employer’s argument that preferential treatment was not permitted, the court found that the OCRC’s interpretation of Ohio’s law “ensures that a female employee is not put in a position of choosing between her job and the continuation of her pregnancy, a dilemma that would never face a male employee in the first year of employment...”

The Family and Medical Leave Act provides a 12-month length-of-service requirement to be eligible for leave under its provisions. However, the OCRC and the Fifth District interpret Ohio law as requiring that pregnant employees be provided leave for a “reasonable period of time”, regardless of length of service. The Ohio Supreme Court’s review of this issue will thus provide necessary guidance in light of these outstanding interpretations of Ohio law.

Author: Gina Kuhlman