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June is Pride Month, a time when the LGBTQ community comes together to celebrate their strength in spite of the decades of hardship and discrimination they have faced for just being themselves and loving the people they love, from the Stonewall riots to the AIDS crisis.

Sadly, LGBTQ discrimination is still an issue even in 2021, but there have been many landmark improvements over the years that allow for legal recourse in the event you believe you have been discriminated against because of your sexual orientation.

Bryant Legal LLC recognizes the incredible resilience the LGBTQ community has and is here to help its members when they face certain types of discrimination. We hope to help you better understand your LGBTQ employment rights if should you ever experience discrimination in the workplace and would be honored to present you in a case if your employment rights are violated.

Can I be illegally discriminated against based on my sexual orientation or gender identity?

No. On June 15, 2020, the U.S. Supreme Court ruled that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex. 

The 1964 Civil Rights Act does not directly state that these characteristics were protected from sex-based discrimination, so the fact that the Supreme Court stated that these identities fall under the umbrella of sex discrimination is important

The federal and Ohio state governments are also considering passing laws that would protect the LGBTQ community from more types of discrimination.

What’s the difference between the Equality Act and the Ohio Fairness Act?

The Equality Act

The Equality Act is a bill that would amend that 1964 Civil Rights Act and make it so it is explicitly stated that discrimination based on sexual orientation and gender identity is illegal. This would apply to more than just employment discrimination and would ensure that LGBTQ people would have equal protection against discrimination, just as anyone else in the United States does.

The Equality Act would also trump the Religious Freedom Restoration Act (RFRA), which means people whose religious beliefs may not approve of same-sex couples or transgender people cannot deny LGBTQ people housing, goods, and services on the basis of their religion and use RFRA as a defense for doing so.

The U.S. House passed the Equality Act on February 25, 2021, but it faces an uphill battle in the Senate.

The Ohio Fairness Act

The Ohio Fairness Act, or OH SB 119, is a bill that would make it illegal to discriminate against gay, lesbian, and transgender people throughout the state of Ohio.

If that the Equality Act does not make it through the U.S. Senate, the Ohio Fairness Act would ensure that discrimination against LGBTQ people in Ohio would be illegal.

Compared to the federal Equality Act, the Ohio Fairness Act does provide greater protection for LGBTQ people as it would apply to employers with more than 4 people (federal anti-discrimination laws apply to businesses with more than 50 employees). However, there are religious exemptions to the Ohio Fairness Act, which would allow religious organizations to discriminate in certain situations.

Despite partisan support for the Ohio Fairness Act, it’s unclear if this bill will pass a chamber, as the last time a similar bill passed a chamber, it was in 2009, when Democrats were in control of the Ohio House

What are some examples of LGBTQ employment discrimination?

  • Being fired after publicly transitioning or coming out
  • The retraction of a job offer after an employer reviews social media posts that show you and your same-sex partner together or posts revealing your transition
  • Being asked inappropriate questions about your sex life or genitals, offensive remarks about clothing, inappropriate touching, etc., to the degree it affects your ability to work effectively; retaliating against you for reporting the sexual harassment to HR by passing you over for a promotion you’ve earned, being excluded from meetings that would improve your position, change in compensation, etc. (hostile work environment sexual harassment)
  • Being asked to transfer positions (i.e., being asked to move from your public-facing position to a different department after starting to transition)
  • Being treated unfavorably due to your sexual orientation or gender identity, such as being denied or deprived of opportunities that could lead to a promotion or better pay

Bryant Legal LLC is here to protect LGBTQ employment rights

If you believe you have experienced any of the above situations, contact Bryant Legal LLC today. We can help you determine whether or not you would be able to pursue legal action against your employer due to LGBTQ discrimination. Contact us today for a consultation or to request more information.

How to Prove Retaliation

written by Daniel Bryant

What is retaliation?

Retaliation occurs when an employer takes an adverse action against you because you participated in protected activity. In order to assert your rights, you need to protect them. The purpose of this blog is to generally explain what can constitute unlawful retaliation, how to prove that you have been retaliated against, and what damages you can potentially recover. 

“Protected activity” is very broad. A non-exhaustive list of protected activities includes, but is not limited to, the following:

  • Refusing to follow orders that would result in discrimination
  • Filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar agency
  • Assisting in an EEOC or agency investigation
  • Participating in any manner in an internal investigation, proceeding, or hearing involving allegations of discrimination
  • Filing or participating in a discrimination lawsuit
  • Witnessing an EEOC charge, complaint, investigation, or lawsuit
  • Communicating with a manager or a supervisor about employment discrimination
  • Opposing discrimination in the workplace (even if it is not you directly who has been discriminated against)
  • Resisting sexual harassment or stepping in to protect others from it
  • Talking about wages with fellow employees or supervisors, regardless of a union’s involvement

Retaliation can negatively impact the trajectory of your career, as it can result in the loss of your job, demotion or being passed over for promotion, job reassignment, or cuts in hours or wages. 

Proving unlawful retaliation can make sure you receive the compensation you deserve — but it is not as easy. It requires you to prove 3 components, and failure to prove just one of these items can end in your case being tossed out.

The 3 components of retaliation

In order to prove retaliation, you have to show the following 3 components to be true:

1. You participated in a protected activity or refused to obey an illegal act

There are 2 types of retaliation: retaliation to opposition and retaliation to participation.

Retaliation to opposition refers to retaliating against an employee who has refused to to obey a discriminatory order and can also be applied to employees complaining about alleged discrimination they have experienced or others have experienced, picketing to oppose discrimination, and threatening to file a discrimination charge.

Retaliation to participation focuses on retaliation against employees who have engaged in a protected activity, such as filing a charge of discrimination, opposing unlawful conduct (or testifying about said unlawful conduct), and participating in an investigation, proceeding, or hearing about the unlawful conduct.

If you have done either of these things, then you can continue to the next component.

2. Your employer took adverse action against you

You need to prove that your employer took adverse action against you. Adverse action can come in several forms, including but not limited to:

  • demotion
  • suspension
  • termination or firing
  • failure to promote
  • reassignment to a position with vastly different responsibilities or requirements
  • a decision that causes a significant change in benefits, such as a reduction or an increase in work hours

Verbally abusing employees who participated in a protected activity or refused to obey an unlawful act and thus creating a hostile work environment may also be constituted as an adverse action. 

3. There is a connection between your employer’s adverse action and your protected activity

Proving causation (that is, the proof that your participation in the protected activity triggered your employer’s adverse action) is one of the most difficult parts to prove, as these cases typically rely on circumstantial evidence.

It is rare for an employer to directly state or even admit that you were demoted, fired, or suspended because you engaged in a protected activity. Even if they have, it’s your word against the employer’s word, which was probably not recorded.

You must make the connection between the adverse action and the protected activity, even though there may not be a direct link. 

For example, if an individual who is qualified under the Americans with Disabilities Act requests a reasonable accommodation is transferred to a different job after making that request, this can be considered retaliation. Making that reasonable accommodation request is considered a protected activity, and transferring them to a different job is considered an adverse action.

While the employer never said why the employee in this example was transferred to a different job, it can be inferred that it was because of the employee’s reasonable accommodation request.

Likewise, when an employee files a sexual harassment complaint with the employer’s human resources department (a protected activity) and the managers reassign her to less favorable projects, stop including her in meetings, and tell coworkers not to speak with her, we can see that before the complaint was filed, the employee was not treated this way. We can infer that this is an adverse action (hostile workplace, failure to promote, and a decision that causes a significant change in benefits) and because we’ve established that connection, we can prove it as retaliation.

Bryant Legal LLC can help you prove retaliation

Although it may seem simple at first glance, proving retaliation is difficult to do.

That’s why it’s important to contact an employment lawyer at Bryant Legal LLC. Our employment attorneys can help you make the connection between the protected action and adverse action and gather evidence that is considered admissible in court. You need every piece of evidence to ensure the outcome of the lawsuit is in your favor, and we will do everything we can to tip the scales in that direction.

Speak to one of our attorneys today for more information and we’ll see what can be done about your case.