Ohio House passes bill banning sexual orientation discrimination

On September 15, 2009, the Ohio House of Representatives passed Am.Sub.H.B.No. 176 which prohibits employment discrimination on the basis of sexual orientation or gender identity. The bill now moves on to the Ohio Senate where its fate is unclear.

If the bill becomes law, it would add "sexual orientation" and "gender identity" as protected traits in the workplace, similar to the protections that traits like race and religion currently have in the workplace. The term "sexual orientation" would not be limited to homosexuality under this bill. Rather, it would include "actual or perceived heterosexuality, homosexuality, or bisexuality."

The term "gender identity" in the bill would mean all gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth. This definition would include the codification of the United States Supreme Court's holding in Price Waterhouse v. Hopkins, 490 U.S. 228, in which the Supreme Court allowed an accountant to proceed with her lawsuit that alleged she was passed over for partnership because she was not feminine enough.

The bill would exempt religious associations and parochial schools from some of its provisions on sexual orientation and gender identity. But the exemptions would not apply to the associations or schools' secular business activities unrelated to their religious and educational purposes.

Even though the bill anticipates gender transition, it would not require the construction of new or additional facilities. Under the bill, it would not be an unlawful employment practice based upon gender identity to deny access to shower or dressing facilities where being unclothed would be unavoidable. But the employer must provide reasonable access to these facilities based upon the employee's gender identity at the time of the initial employment or upon notification that the employee is undergoing, or has undergone, gender transition.

The Ohio Civil Rights Commission would not be permitted to collect statistics from employers on employees' sexual orientation or gender identity. The bill would also not permit "disparate impact" claims on the basis of sexual orientation or gender identity. "Disparate impact" claims are based upon a neutral policy that has a negative impact on people with a protected trait.

Because some Ohioans feel strongly that sexual orientation is a choice, a choice to which those Ohioans may have strong objections, passage of the bill in the Ohio Senate is not assured. Nevertheless, many Ohio employers have voluntarily adopted policies against discrimination on account of sexual orientation or gender identity. Employers adopted these policies because they want to keep good employees, regardless of an employee's orientation or gender identity. This bill would make those policies the law of Ohio. If you feel strongly about this bill - one way or the other, you should call your State Senator's office and let him or her know.