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Sexual Orientation Discrimination vs. Sexual Stereotypes Discrimination

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in The Legal Workplace Blog

Matthew Inskeep sued his employer, claiming that he was harassed on the job because of his sexual orientation. In Inskeep v. Western Reserve Transit Auth. (Ohio Ct. App. 3/8/13), the court tossed out his case. And, it did so without even reaching the merits of what allegedly happened to Matthew Inskeep. Instead, it ruled that because Ohio’s employment discrimination statute does not protect “sexual orientation,” Inskeep had no claim to bring.

As the court stated—

Several states have chosen to enact legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in their discrimination statutes. Because Ohio has not, it has been concluded that sexual orientation is not protected….

Although allowing same-sex sexual harassment cases to proceed where based on sex, we still express agreement with the premise that R.C. 4112.02 does not protect sexual orientation…..

Ohio’s lack of protections for sexual orientation discrimination parallels federal law, and the law of 28 other states.

Compare the result of Inskeep, however, to the result of another case recently decided under the parallel federal statute—Koren v. The Ohio Bell Telephone Co. (N.D. Ohio 8/14/12). In that case, the employee claimed that his employer fired him because he is a homosexual and took his husband’s last name. The court concluded that Koren pleaded an “unlawful sexual stereotyping” claim under Title VII:

The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name….

There is no apparent difference in the employer’s intent between Inskeep and Koren. Both employers appear to have treated the plaintiffs differently because they are gay. The different results, however, flow from how each plaintiff described the claim—Inskeep called it sexual orientation discrimination and lost, while Koren called it unlawful sex-based stereotypes and won.

It is time that we do away with these ridiculous distinctions. Discrimination is discrimination, no matter what creative label we slap on it. A company should not evade liability for invidious discrimination because of a happenstance of pleading.

The time is coming when Congress will end this debate. I believe that before President Obama leaves office, he will sign the Employment Non-Discrimination Act into law and finally include “sexual orientation” as a class Title VII protects.

Until that time, employers should be aware that courts are increasingly protecting sexual orientation under theories of unlawful sex-based stereotypes. To account for these issues, I suggest you amend your own policies, outlaw sexual orientation discrimination in your business, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

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