On Tuesday, September 15, 2009, the Ohio House of Representatives passed a bill to add sexual orientation and gender identity to the list of protected classes under Chapter 4112, Ohio’s antidiscrimination statute, and R.C. 4111.17, which prohibits wage discrimination. The bill, H.B. 176, was introduced into the Ohio House in May and originally added “gender identity and expression” to the list of protected classes. An amendment to the bill eliminated gender expression as part of the definition of the protected class, narrowing the protection for gender identity to “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.”
Interestingly, the bill limits the statutes’ coverage for the two new classes — sexual orientation and gender identity — only to government employers and employers with 15 or more employees (as opposed to the four or more employees required for other protected classes). In addition, the bill provides an exception for “religious association[s], corporation[s], or societ[ies] . . . not organized for private profit, or any institution[s] organized for educational purposes . . . operated, supervised, or controlled by such [religious organizations]” to discriminate on the basis of sexual orientation or gender identity and expression except when the organization is engaged in a secular business activity unrelated to the religious or educational purpose for which it is organized.
The amendment also added provisions addressing dress and grooming standards and changing and restroom facilities — two common issues for employers with regard to gender identity. Regarding shower and dressing facilities, the bill states that it isn’t unlawful to deny access to shower or dressing facilities in which being seen unclothed is “unavoidable” “provided the employer provides reasonable access to adequate facilities that are not inconsistent with an employee’s gender identity” — either as established at the time of hire or upon notification that the employee is either undergoing or has undergone gender transition, whichever is later. But the bill is clear that it doesn’t require construction of additional facilities to meet this requirement. It is unclear from the language of the bill how an employer would comply with this requirement without providing a separate changing or shower facility for an employee undergoing gender transition. It’s possible that designating specific times for use of gender-appropriate facilities separate from other employees would comply with the requirement without requiring additional facilities.
Regarding dress and grooming standards, the bill permits employers to maintain or implement such standards provided it allows an individual who, at the time of hire or sometime later, notifies it that he or she is undergoing gender transition to adhere to the dress and grooming standards of the gender to which the individual is transitioning.
In addition, the amendment limits discrimination claims on the basis of sexual orientation and gender identity to disparate treatment, or intentional discrimination, expressly excluding any claim for disparate impact, which refers to a facially neutral policy or practice that has an adverse impact on a protected group. Other than those express limitations, the bill simply extends the prohibition on employment discrimination already applicable to the protected classes of race, color, religion, sex, military status, national origin, disability, age, and ancestry to the two new classes.
Currently, 20 states and the District of Columbia — and many more cities and municipalities — prohibit employment discrimination based on sexual orientation. Only a subset of those states — California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia — protect gender identity or expression or transgendered status as a protected class. Some states additionally protect “gender dysphoria” as a disability under state disability law protections.
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You can find a state-by-state comparison of state discrimination and other laws in 50 Employment Laws in 50 States. You also can keep up with the latest changes in state employment laws in all 50 states with the monthly newsletter, Employers State Law Alert. To stay current on changes in employment law in Ohio, check out the Ohio Employment Law Letter, a monthly newsletter written by attorneys at the law firm of Porter Wright.