Currently, neither Ohio nor federal statutory law expressly prohibits employment discrimination because of sexual orientation or gender identity. Most are aware that state and federal laws prohibit discrimination “because of,” for example, one’s sex, religion, or race.¹ Bills now before the Ohio General Assembly and Congress would extend that protection specifically on the basis of sexual orientation and gender identity.

The proposed legislation builds upon, as well as addresses some limitations of, existing law. In Ohio, the Governor declared it “to be the policy of the State of Ohio that no person employed by a Cabinet agency or by a State of Ohio Board or Commission may discriminate on the basis of sexual orientation or gender identity in making . . . employment related decisions.”² While broad, this language is by its own terms limited to identified state government employers. For their part, courts have explored the reach of the current law’s prohibition against discrimination “because of . . . sex.” Ohio and federal laws prohibit same-sex discrimination when the discriminatory conduct or hostile work environment is because of the complaining party’s sex – but not when it is “because of” his or her sexual orientation.³ Also, Title VII prohibits discrimination against those who do not conform to gender stereotypes.⁴ Gender identity, defined and discussed below, is broader than merely conformity or non-conformity to gender stereotypes. Moreover, courts have refused to tie gender stereotyping cases to sexual orientation.⁵ Thus, while courts have broadly interpreted the prohibition of discrimination because of “sex,” they have refused to extend existing protections to discrimination because of sexual orientation or gender identity. The proposed legislation would overcome that limitation.

Ohio Substitute House Bill 176 (“H.B. 176”)

On September 15, 2009, the Ohio House of Representatives passed H.B. 176. H.B. 176 is aimed at prohibiting employment discrimination based upon sexual orientation and gender identity. The new law would amend Chapter 4112 of the Ohio Revised Code, which prohibits discrimination in employment and establishes the Ohio Civil Rights Commission, and make conforming amendments throughout the Code.

H.B. 176 would define “sexual orientation” as “actual or perceived heterosexuality, homosexuality, or bisexuality.” “Gender identity” would mean “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” Using those definitions, H.B. 176 seeks to prohibit discrimination “because of” sexual orientation/gender identity by, among others, an employer, employment agency, labor organization, or covered housing seller, lessor, or creditor. The new law could be read to prohibit both discrimination against historically targeted homosexuals or bisexuals, as well as “reverse” discrimination against heterosexuals.

H.B. 176 contains notable restrictions. First, while the H.B. 176 definition of “employer” would include the “state [and] any political subdivision of the state,” it would not apply to some small private employers. Chapter 4112 currently defines employer as – and, therefore, prohibits discrimination by – any person “employing four or more persons within the state.” The prohibition against discrimination based on sexual orientation and gender identity, though, would only apply to a “person employing fifteen or more persons within the state.” Second, the new law would grant some leeway to religious entities, including educational institutions, except with regard to the secular business activities unrelated to the religious and educational purpose of the entity. Third, the law attempts to address some anticipated issues. For example, for shared shower or dressing areas “in which being seen unclothed is unavoidable,” employers would be permitted to deny access based upon sexual orientation or gender identity, provided, of course, that the employer allows adequate alternative facilities. The law would not, however, “require the construction of new or additional facilities.” Nor would it prohibit the enforcement of dress or grooming codes, as long as that the employer allows an employee who has undergone or is undergoing gender reassignment to adhere to the standards for the gender to which the employee transitioned or is transitioning. Finally, the law would not permit disparate impact claims relating to a “facially neutral policy or practice that has a negative impact on a protected group.”

As of this writing, H.B. 176 has been referred to committee in the Ohio Senate. There has been no further action by the Ohio Senate.

Congress’s Employment Non-Discrimination Act of 2009 (“ENDA”)

ENDA would not amend Title VII, but would create a stand-alone section to prohibit discrimination based upon sexual orientation and gender identity. The new section, though, draws heavily from – and is repeatedly cross-referenced with – Title VII. The apparent intent is for the new protections to be treated by employers and the courts much the same as the type of discrimination prohibited by Title VII.

ENDA would define “sexual orientation” and “gender identity” the same as Ohio’s H.B. 176. ENDA would also prohibit discrimination in employment by employers, employment agencies, and labor organizations – but would not apply to members of the U.S. Armed Forces. Notably, ENDA would purport to apply to Ohio, and other states, as employers. First, ENDA seeks to abrogate state immunity, providing that a “State shall not be immune under the 11th amendment to the Constitution from a suit brought in a Federal court of competent jurisdiction for a violation of” ENDA. Second, ENDA builds in a waiver provision, providing that a “State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th amendment to the Constitution or otherwise, to a suit brought by an employee or applicant for employment of that program or activity under” ENDA. The apparent design of either provision is to extend the reach of ENDA to the state-as-employer, similar to Title VII.

ENDA contains qualifying provisions similar to H.B. 176, relating, for example, to shared facilities, construction of new facilities, and dressing and grooming codes. In addition, ENDA explicitly clarifies that it does not prohibit adverse action against an employee for a sexual harassment complaint, even though such a complaint may be inherently linked to the employee’s sexual orientation or gender identity, “provided that rules and policies on sexual harassment . . . are designed for, and uniformly applied to, all individuals regardless of actual or perceived sexual orientation or gender identity.” Further, ENDA effectively limits its application to intentional discrimination, stating that it should not be construed to prohibit the enforcement of “rules and policies that do not intentionally circumvent the purposes of [ENDA], if the rules or policies are designed for, and uniformly applied to, all individuals regardless of actual or perceived sexual orientation or gender identity.” Finally, ENDA reiterates the definition of “marriage” set out in the Defense of Marriage Act,⁶ and provides that ENDA does not require employers to “treat an unmarried couple in the same manner as the [employer] treats a married couple for purposes of employee benefits.”

As of this writing, the most recent iteration of ENDA – H.R. 3017 – was introduced in the House on June 24, 2009. ENDA has been referred to the House Committee on Education and Labor, the Judiciary Committee, and the Committees on House Administration, Oversight and Government Reform. The Senate corollary – S. 1584 – was introduced on August 5, 2009, and was referred the same day to the Senate Health, Education, Labor, and Pensions Committee.

James A. Hogan
Assistant Section Chief

¹ See Ohio Rev. Code §§ 4112.01 et seq.; Title VII of the Civil Rights Act of 1964 codified at 42 U.S.C. § 2000e, et seq. (“Title VII”).
² Exec. Order 2007-10S (May 17, 2007) available at http://www.governor.ohio.gov/Portals/0/Executive%20Orders/Executive%20Order%202007-10S.pdf.
³ See, e.g., Hampel v. Food Ingredients Specialties, 89 Ohio St. 3d 169 (2000); Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998).
⁴ See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (addressing alleged discrimination against a “macho” female); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (addressing alleged discrimination against an effeminate male, later diagnosed with Gender Identity Disorder).
⁵ See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006).
⁶ 1 U.S.C. § 7.