On May 12, Representatives Stewart and McGregor introduced into the Ohio House of Representatives H.B. 176 to add “sexual orientation or gender identity and expression” to the list of protected classes under Chapter 4112, Ohio’s anti-discrimination statute, and R.C. 4111.17, which prohibits wage discrimination. Interestingly, the bill limits the statutes’ coverage for the two new classes only —sexual orientation and gender identity and expression—to government employers and employers employing 15 or more persons (as opposed to the four or more persons required for other protected classes). [R.C. 4112.01(2).]
The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality” and gender identity and expression as “the gender-related identity, appearance, or expression of an individual regardless of the individual’s assigned sex at birth.” [R.C. 4112.01 (23), (24).] 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 where the organization is engaged in a secular business activity unrelated to the religious or educational purpose for which the organization is organized. [R.C. 4112.02(R).] Otherwise, 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, including Columbus—prohibit employment discrimination based on sexual orientation. Only a subset of those states—California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia—protect gender identity or expression or transgender status as a protected class. Some states additionally protect “gender dysphoria” as a disability under state disability law protections. H.B. 176, as written, would seem to broadly protect employees who are undergoing (or plan to undergo) sex assignment surgery and those who do not plan to undergo surgery but choose to identify as the opposite sex. This category presents a host of workplace issues—including dress code, grooming standards, and restroom-use issues related to transgender employees who identify with a gender other than their biological gender. Many state and municipal laws addressing gender identity make explicit exceptions for dress code and grooming standards, but the proposed Ohio statute does not.