In Burns v. The Ohio State University, an Ohio appeals court refused to recognize sexual orientation discrimination and harassment as prohibited “sex” discrimination under Ohio law, punting the issue once again to the Ohio legislature.

Background Facts 

Colby Burns was a resident of veterinary clinical sciences at the College of Veterinary Medicine at The Ohio State University. Burns worked under Dr. Stephen Birchard, an associate professor of veterinary clinical sciences. During the summer of 2008, Dr. Birchard learned Burns is a homosexual and allegedly began treating Burns differently than other students. Burns claimed Dr. Birchard excluded her from social activities involving other residents and faculty, changed her percentage of effort on a research grant without her knowledge, denied her assistance from other residents, made vulgar and sexual comments and jokes, and spoke with prospective employers causing the cancellation of job interviews. Burns reported the conduct to the College of Veterinary medicine, which initiated an investigation, but Burns claimed the conduct continued during and after the investigation.

Burns sued in the Ohio Court of Claims alleging sex discrimination, sexual harassment (based on a hostile work environment theory), retaliation, and violation of public policy. The court dismissed Burns’ claims on the University’s motion to dismiss saying Burns claims failed at the pleading stage as a matter of law.

The Court’s Decision

Burns appealed to the Tenth District Court of Appeals. The appeals court first reviewed Burns’ sex discrimination, sexual harassment, and retaliation claims, which Burns claimed fell with Ohio Revised Code 4112.02(A)’s prohibition against discrimination “because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry” of that person. To prove hostile environment harassment, Burns had to prove, among other things, that she was subjected to unwelcome harassment “because of sex.” Ultimately, the court decided that the answer to this question was no because Burns never claimed she was subject to discrimination or harassment because she was a woman.

To the contrary, Burns alleged Burns argued the word “sex” as used in R.C. 4112.02(A) is not limited to gender, and also extends to protect against discrimination based on sexual orientation, and more specifically, “sexual gratification and attraction.” In refusing to extend the definition of the word “sex” as it is used in the Ohio law, the court looked to the Ohio Supreme Court’s Hampel  v. Food Ingredients Specialties, Inc. decision in which the court held that “‘harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’”  89 Ohio St.3d 169 (2000) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).  The conduct, however, does have to be because of the alleged victim’s sex.

Burns argued that the term “sexual” (presumably as opposed to “sex”) modifies the term “harassment,” and therefore can “refer to both sex as the immutable gender characteristic and to sex as describing a range of behaviors associated with libidinal gratification.” The court agreed that the term “sexual” refers to the type of conduct that could constitute “harassment” but does not expand the class of individuals who are protected by the law.

The court also affirmed the dismissal of Burns’ claim that the University violated public policy because neither federal nor state law includes sexual orientation bias in the prohibition against sex discrimination.

Takeaways

As the appellate court expressly recognized, Burns was arguing for a change in Ohio law, which the court rightly viewed as being the responsibility of the legislature. While many states have laws prohibiting workplace discrimination and harassment on the basis of gender identity or sexual orientation — click here for a summary — Ohio does not.  And, if Burns chooses to seek Ohio Supreme Court review of this issue, it too is likely to defer to the legislature.

As for Ohio legislation on this issue, currently 29 Ohio cities and counties have anti-discrimination ordinances. Eleven of these fully protect individuals from discrimination in employment and housing based on sexual orientation and gender identity. In addition the State of Ohio protects its workers from discrimination based on sexual orientation, but not gender identity via an executive order issued by Governor John Kasich on January 21, 2011.

Of the 29 Ohio cities and counties that have anti-discrimination ordinances prohibiting discrimination of the basis of sexual orientation, the following 17 have an LGB or LGBT anti-discrimination ordinance that protects all individuals from discrimination: Akron, Athens, Bowling Green, Canton, Cincinnati, Cleveland, Cleveland Heights, Columbus, Dayton, East Cleveland, Lakewood, North Olmsted, Oberlin, Oxford, Shaker Heights, Toledo, and Yellow Springs.  The following twelve cities and counties have protections for city or county employees only:  Cuyahoga County, Cuyahoga Falls, Franklin County, Gahanna, Hamilton, Hamilton County, Laura, Lima, Lucas County, Montgomery County, Summit County, and Wood County.

In addition, Senate Bill 125 and House Bill 163, both of which are currently pending, would, if passed, change Ohio’s anti-discrimination laws to include sexual orientation and gender identity as protected classes, expanding legal protections in housing, employment, and services.  Both bills also include limited religious exemptions.