When the U.S. Supreme Court granted same sex couples the right to marry last month, advocates from gay rights groups nationally and in the Cincinnati region said more work was still needed to obtain full equality.
The need was especially strong when it comes to protecting gay, lesbian, transgender and transsexual employees in the workplace, they said.
“The missing piece … is there isn’t parity as far as legal protection (at work),” said Beck Bailey, deputy director of employee engagement at the Human Rights Campaign said.
But a big step toward protecting out gay, lesbian and bisexual workers came earlier this month. The federal Equal Employment Opportunity Commission (EEOC) affirmed that employment discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964.
The federal law, which that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion, does not expressly provide protection for LGBT workers.
But on July 15, the EEOC ruled in the case of (name of charging party kept secret) v. Foxx that discrimination based on sexual orientation is intrinsically or per se sex discrimination. “We …conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission ruled.
EEOC case from Cincinnati
The decision is an important development on the road to full LGBT equality, said Gary Greenberg, an employment attorney representing employers at Downtown law firm Denlinger, Rosenthal & Greenberg. He said incremental advances have been made for years that led up to this latest development, including a 2012 EEOC ruling that stated discrimination based on gender identity violates the Civil Rights Act.
“This isn’t revolutionary, rather evolutionary,” Greenberg said. “For years there have been developments suggesting a movement towards interpretation of Title VII prohibition based on gender, to include discrimination based on sexual orientation,” he said, adding that one of the leading cases that brought the EEOC to this point, was a case that came out of Cincinnati.
In 2000, a Cincinnati police officer filed a federal lawsuit against the city, claiming he was demoted from his rank as sergeant because he is a transsexual. Officer Phillip (now Philecia) Barnes, at the time of the suit, was living as a man during the day, and was a woman the rest of the time.
Barnes, who had fully transitioned after the end of the suit in 2005, won in the U.S. Sixth Circuit Court of Appeals in Cincinnati, when it ruled in that the city police department discriminated based on sexual stereotyping.
“Now, the EEOC is following that and taking it one step further,” Greenberg said, “The EEOC is saying were going to view all LBGT discrimination as a form of gender discrimination.”
“The finding continues an important trend,” said Deena Fidas, director of the Human Rights Campaign’s Workplace Equality Program, “but EEOC rulings are not binding on federal courts, nor has the Supreme Court ruled on this issue.”
“While the EEOC rulings are clear indications that discrimination based on gender identity and sexual orientation run counter to our shared understanding of equal opportunity, we need explicit federal protections to ensure consistent treatment under the law.”
Danyette Foulks-Young, senior recruiter with HYUR staffing in Montgomery said, the new EEOC ruling gives the LGBT community workplace protections that they didn’t have before, adding that previously, crossdressing or “male or female workers who did not act in ways that stereotypically comport their gender” could complain, “but to be gay, there was no recourse,” she said. “This ruling is extremely important for the gay community,” she said.
Foulks-Young said she anticipates that if and when communities pass laws that protect gay, lesbian and bisexual workers, it will be at the local level. Locally, Cincinnati, Oxford and Covington ban workplace discimination based on sexual orientation. Hamilton County and the city of Hamilton ban discrimination based on sexual orientation in hiring of and treatment of county or city workers respectively.
How will companies will respond to the ruling?
Cathleen Snyder, with Strategic HR in Sycamore Township, said area companies will definitely see an affect from the EEOC’s move. “Especially smaller employers, I anticipate,” she said.
“Companies are going to have to be a lot more vigilant as to how they handle complaints from workers.”
When asked how religious organizations that her firm serves would likely respond to the issues, Snyder said “it will present some challenges for companies with strong religious values,” she said.
Greenberg said the recent EEOC ruling is a step in the right direction, “though I would not call it groundbreaking given the advances made at least 12 years before this time.”
Snyder at Strategic HR said it comes down to workers finally being allotted the respect they deserve.
“This is important,” she said. “Companies should take a stand to treat everyone with respect and dignity and it shouldn’t take legislation to make them do so.”