Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. From 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives.
Our U.S. Constitution begins elegantly, "We the People." Yet some elected officials in Cuyahoga County, Ohio recently argued in federal court that gays and lesbians are not included in that "We the People."
Thankfully, a federal judge published an important legal opinion earlier this week rejecting the Ohio County's arguments and affirming that the Equal Protection Clause of Fourteenth Amendment to the U.S. Constitution protects all of us from irrational discrimination.
Shari Hutchinson of Ohio, a dedicated public employee who also happens to be a lesbian, began working for a Cuyahoga County child-support enforcement agency in 2002. She was hired as a support officer and later became an account clerk. Her lawsuit alleges that the County denied her higher-paying promotional opportunities in favor of lesser qualified straight people with unimpressive educational credentials, even though Hutchinson has more experience and a Master's Degree in Business Administration.
Unfortunately, Ohio does not have a state-level ENDA, and we all know that the U.S. Congress has still not passed the federal ENDA either. Interestingly, Cuyahoga County does have a non-discrimination policy that includes sexual orientation, but like so many other local government non-discrimination policies, those words are pretty on paper but they do not create a meaningful enforcement mechanism.
That is why we so desperately need to pass a fully inclusive ENDA.
Thankfully, Hutchinson found a talented lawyer named Avery Friedman (pictured), whom you may have seen on CNN as a legal correspondent. Friedman brought Hutchinson's discrimination lawsuit based on the Equal Protection Clause of the Fourteenth Amendment.
As I have previously written on Bilerico, LGBT plaintiffs who work for public employers can bring a constitutional claim alleging discrimination even if no state or federal ENDA exists. Unfortunately, gays and lesbians who suffer discrimination or workplace harassment in the private sector are out of luck if they live in a state without a state-level ENDA.
Hutchinson's case was assigned at random to Judge James S. Gwin, a smart and progressive jurist who was appointed by President Bill Clinton. (Yes, elections do matter to everyday people like Shari Hutchinson). Once the legal proceedings began, a man named Dave Lambert, the civil division chief for County Prosecutor Bill Mason, decided to defend the unconstitutional discrimination that Ms. Hutchinson endured rather than amicably settling the case.
The most revolting part of the litigation thus far is that Lambert and his boss Bill Mason, an elected Democrat who currently faces state and federal investigations for his alleged unethical conduct, decided to argue in federal court that gays and lesbians essentially do not belong within the equality protections of the U.S. Constitution.
According to Judge Gwin's written opinion, the County submitted papers contending that "all of Hutchinson's claims must fail because sexual orientation is not a protected class, and thus does not merit the constitutional protection, under the Equal Protection Clause, that Hutchinson seeks."
Judge Gwin disagreed with the County, which is a preliminary win for the plaintiff at this early stage of the case, but unfortunately the Court chose to apply only the lowest form of constitutional protection: "Rational Basis Review."
Earlier today, I spoke to attorney Avery Friedman and he told me that at the time he filed his legal papers on behalf of Ms. Hutchinson, President Barack Obama and Attorney General Eric Holder had not yet announced the official position of the U.S. Government that gays and lesbians deserve "Heightened Scrutiny" under the Constitution, rather than merely the lowest form of Rational Basis Review. But the case is not over.
Ms. Hutchinson's lawsuit now proceeds to the next stage at the trial court - fact discovery followed by "Summary Judgment" - and perhaps eventually to a jury trial and then review by the U.S. Appellate Court and the U.S. Supreme Court. At those later stages of the litigation, Judge Gwin and other federal judges on the higher courts will have the opportunity to reassess what level of constitutional protection should apply in this case - and to gays and lesbians in general. Whatever they decide will have huge implications for all LGBT Americans, and we are in a stronger position today because of President Obama's recent DOMA announcement.
As Professor Jack Balkin of Yale Law School has written, "when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree."
In other words, President Obama's historic stance in the DOMA context may likely have positive spillover effects in the employment context. As I have written a few times before, equality begets equality. The victims of senseless workplace discrimination like Shari Hutchinson will have a greater chance of securing justice and holding their employers accountable because of the important work of their own attorneys, as well as the attorneys within the Obama Administration.