MDNews - Cleveland-Akron-Canton

May/June 2018

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IN MARCH OF this yea r, the federa l cour t of appea ls covering Ohio (6th Circuit) determined tra nsgender employees a re per se protected from discrimination. (For those who wa nt to read the decision, it 's EEOC v. RG & GR Ha rris Funera l Homes, Inc., No. 16-2424 (6th Cir. Ma rch 7, 2018)). La st month, the federa l cour t of appea ls covering New York, Connecticut a nd Vermont determined the sa me law (Title V II) prohibits employ- ment discrimination based on sex ua l orientation. M a n y o f t h e L G B T p r o t e c t i o n s a r e n o t n e w. For 30 yea rs, it has been illega l to discriminate aga inst someone for not conforming to "sex ua l stereot y pes." In 1989, the U.S. Supreme Cour t determined it is illega l to discr iminate a ga inst a fema le employee because she did not ta l k or dress fem ininely enoug h . (Pr ice Waterhouse v. Hopkins, 490 U.S. 228 (1989)). In 1998, the U. S. Supreme Cour t determined it wa s i l lega l to discriminate against a gay employee because he acted too effeminately. (Onca le v. Sundowner Offshore Ser vices, Inc., 523 U.S. 75, 79 (1998)). In 2004, our federa l cour t of appea ls (6th Circuit) determined a tra ns gendering (ma le to fema le) employee could not be discriminated aga inst for becoming more feminine. (Smith v. Cit y of Sa lem, 378 F.3d 566, 573 (6th Cir. 2004)). The Ha rris Funera l Home ca se ta kes t his to its log ica l conclu- sion: If it 's illega l to discriminate aga inst someone for not con for m ing to sex ua l stereot y pes, tra nsgender discrimination has to be per se illega l. Un like tra nsgender, LGB is not per se protected in Ohio. It 's only protected to the ex tent a n LGB employee goes a ga inst sex ua l stereot y pes — such a s acting or dressing too femininely (for men) or too ma n ly (for women). (Price Waterhouse, Onca le, Smith.) But with current trends, we believe it is on ly a mat ter of time before LGB is protected per se. Our adv ice: Cha nge your policies a nd specif ica l ly proh ibit tra nsgender discr i m i nation . A lso to avoid being a test case for the EEOC, consider cha ng ing your policies to prohibit LGB discrimination. B a r r y F re e m a n i s a p a r t n e r w ith B u ck i n gh a m , Doolittle & Burroughs in Canton , Ohio, and a member of its Employment and Labor Practice G roup. He is a Certified Labor and Employment Law Specialist by the Ohio State Bar Association . For more information about Buckingham business law firm, go to You may also contact Mr. Freeman at 216-736- 4223 or . ■ LGBT: Legally-protected in the Workplace BY BARRY FREEMAN 1 8❱❱❱❱❱ B U S I N E S S S E C T I O N

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