Cincinnati Pride: Why Businesses Are Progressing on LGBT Issues

Diversity and inclusion is a hot topic in corporate America – and rightfully so. Businesses recognize that diversity and inclusion influences profit and loss and impacts recruiting and retaining talent, especially young professionals. America is a melting pot of different backgrounds, and Millennials desire to be surrounded by diverse people. Diversity and inclusion also helps companies avoid being entrapped in litigation and culture wars, both of which are not good for their bottom line. In 2017, diversity and inclusion is crucial to success.

As a gay man, I have personally and professionally experienced the impact that diversity and inclusion has had on my career. I focus my law practice on the lesbian, gay, bisexual and transgender (LGBT) community, and I am very fortunate to be at a law firm that values my background. Otherwise, I could get married one day and then get fired the next day because state and federal statutes do not specifically protect gay people from employment discrimination in the private sector.  Federal law offers protections from sex-based discrimination under Title VII of the Civil Rights Act of 1964, but it is extremely unclear how Title VII applies to gay and lesbian employees.

Businesses are increasingly aware of the litigation activity around the country. The litany of court cases hinge on the 1989 United States Supreme Court decision in Price Waterhouse v. Hopkins, which established that an employer is not permitted to treat an employee differently because the employee does not comply with traditional gender norms. As a result, the trend is that Title VII is not exclusive to biological sex and precludes discrimination that occurs as a result of cultural and social aspects associated with masculinity and femininity.

Cincinnati is located in the United States Sixth Circuit Court of Appeals, which has very favorable case law to LGBT employees and supports the argument that Title VII precludes discrimination based on gender identity. In Smith v. City of Salem, the Court held that sex stereotyping based on a person’s “gender non-conforming behavior” is impermissible discrimination even if the employee identifies as “transsexual” since the employee faced discrimination because of his or her gender non-conformity. In 2005, in Barnes v. City of Cincinnati, the City of Cincinnati lost a lawsuit when an officer, Phelicia Barnes, was promoted to sergeant upon passing a promotional exam and then demoted after failing the probationary period.  At the time, Phelicia dressed as a male – and identified as “Philip” – while on-duty but often lived as a woman off-duty. Ultimately, the city had to pay over $800,000.00 in damages.

Other federal circuits around the country have led to different results, which ripens the issue up for review by the United States Supreme Court. In March 2017, the Eleventh Circuit Court of Appeals decided in Evans v Georgia Regional Hospital that Title VII does not prohibit discrimination on the basis of sexual orientation. In April 2017, the Seventh Circuit Court of Appeals issued the groundbreaking Hively v. Ivy Tech decision that declared discrimination because of sex includes discrimination because of sexual orientation. The distinction between gender non-conformity claims and sexual orientation claims has led to a strange conclusion whereby a gay man can be fired for being gay only if he acts like he is straight. However, if the gay man acts very effeminately, he is likely protected from being discriminated against if the adverse employment action was based upon his gender non-conformity.

While an employer’s obligations to prospective and current LGBT employees remain uncertain as litigation ensues over Title VII’s definition of sex-based discrimination, many Greater Cincinnati employers are already ahead of the legislature in implementing non-discrimination policies and procedures that reflect a more diverse and inclusive society. Numerous area companies, including Proctor and Gamble Co., Macy’s Inc, General Electric Co., and Fifth Third Bancorp, score 100% on the Human Rights Campaign Corporate Equality Index, which is the leading national benchmarking tool on corporate policies and practices pertinent to LGBT employees. The number of area employers scoring high on the CEI continues to grow every year as businesses realize the talent that they gain from being inclusive to LGBT employees.

The Greater Cincinnati region is also at a much different place now than it was in 1993 when Cincinnati voters approved Article 12, which prohibited the city from offering protection to people “because of homosexual, lesbian or bisexual orientation.” The ordinance was repealed in 2004, and now Cincinnati is known as one of the most LGBT-friendly cities in the country thanks to the efforts of political, legal and business leaders. Our media is very educated on LGBT issues, and the general public is generally more aware. Cincinnati was the first city in the country to ban conversion therapy, and Cincinnati Children’s Hospital has one of the preeminent transgender clinics in the country. Quite simply, Cincinnati is inclusive and welcoming to the LGBT community! Therefore, it is imperative that employers in this region scrutinize their policies and ensure that they are minimizing their litigation risks and avoiding culture wars.

 

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  • About the Author

    Joshua R. Langdon

    Josh Langdon joined Wood & Lamping in 2016 after being an associate attorney for Scott E. Knox for several years. He has extensive experience in representing lesbian, gay, bisexual and transgender (LGBT) clients throughout Ohio and Kentucky in a variety of areas. His practice focuses on probate law and estate planning, family law and civil litigation.  

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