On the heels of the announcement of a stunning victory for trans employees in the United States Circuit Court of Appeals for the 11th Circuit comes news of a major six-figure settlement in the Shari Hutchinson case. The Ohio woman, a Support Officer for the Cuyahoga County Child Support Enforcement Agency, had significant private sector experience and an Executive MBA. However, after her co-workers and managers learned that Shari is lesbian, they spread false rumors about her and repeatedly passed her over for promotions that went to significantly less qualified applicants, including heterosexual candidates who did not even pass the required tests or comply with the Agency's application procedures.
Neither Ohio nor the city have any law prohibiting sexual orientation discrimination, so ordinarily, Ms. Hutchinson would have been out of luck. However, because she is a public employee, the constitutional guarantee of equal protection of the laws is applicable to her employer. This is similar to the tack taken by the lawyers for Vandy Beth Glenn, the trans employee who was found to be entitled to protection under the Equal Protection Clause by the 11th Circuit last week. However, while there is now a rather substantial body of precedent for the proposition that a trans employee, discriminated against due to their gender identity or gender expression, is entitled to protection based on the category of "sex discrimination," the courts have been much more reluctant to do so for gay and lesbian employees.
That is now, I am thankful to see, beginning to change.
In a decision back in April, the United States District Court for the District of Ohio found for Ms. Hutchinson on the employer's motion to dismiss. A motion to dismiss is, in effect, an argument that even if everything stated in the plaintiff's complaint is true and accurate, the law provides no relief for such a claim. So, for example, if I filed a complaint against my boss because he insisted on wearing a striped tie with his plaid suit, my complaint would be vulnerable to a motion to dismiss, because though it may be a fashion violation, it is not employment discrimination or harassment, or any other legally actionable category. That's what the employer was arguing, that discrimination because of sexual orientation is not a legally protected category. And that would be true enough if the basis for the lawsuit were the federal sex discrimination statute. The federal courts have often reiterated that sexual orientation, by itself, is not a form of sex discrimination, though there are certainly compelling arguments that it is. But a lawyer's job, when interpreting such statutes, is to predict what courts will do, not what is hoped for.
This lawsuit, however, posed a different question: Is employment discrimination due to sexual orientation unequal treatment under the Equal Protection Clause of the US Constitution, applicable to our governments? The answer, according to the court, is that it is unequal treatment.
That's wonderful, but it is interesting to note that the court ruled that the employer's action here is only being subjected to the lowest standard of review, which is surprising. Unlike the Glenn case, where the employer had to show an "exceedingly persuasive justification" for its action (which it couldn't and so lost the case), the employer here only had to show that its actions had a rational basis. This stands in stark contrast to determination by the Obama Administration that sexual orientation is a protected category under the Constitution entitled to the same type of "heightened scrutiny" as the category of sex, as well as the 11th Circuit Glenn ruling.
I believe that government actions discriminating on the basis of sexual orientation should be subjected to heightened scrutiny. However, wishing doesn't make it so, and so let me wish instead for another series of lawsuits and judges who understand what equality means in it broadest sense
But movement is movement, and the protection of public employees in Ohio from employment discrimination based on sexual orientation is a welcome move.