POMEROY — With continuing extensive discussion in Pomeroy and surrounding communities regarding alleged discrimination on the part of the Village Mayor against an openly gay police officer, one key question remains at the forefront of minds across the Ohio Valley — where does the law stand on the matter?
The quick answer to that is, it depends on where you live or work.
Mark Moretti of the Ohio Attorney General’s Office stated that Chapter 4112, Ohio’s Law Against Discrimination, does not expressly prohibit discrimination based on sexual orientation.
Chapter 4112 does prohibit discrimination on the basis of race, color, religion, sex, military status, national origin, disability, age or ancestry.
However, when it comes to allegations of discrimination related to sexual orientation, legal protections vary in depth and breadth from state to state. According to the American Civil Liberties Union (ACLU), 16 states and the District of Columbia have laws in place which prohibit all forms of discrimination based on sexual orientation and gender identity as applied to employment, housing and public accommodations. Another four states prohibit discrimination in these areas based on sexual orientation only.
Ohio and eight other states prohibit discrimination based on sexual orientation in public — but not private — employment. The remainder of the states do not have a law in place at the state level.
On January 21, 2011, Ohio Governor John Kasich issued an Executive Order that established an anti-discrimination policy in state government employment.
The order reads in part:
No person employed by any State Cabinet agency or by a State board or commission shall discriminate against any other State employee or candidate for State employment on the basis of race, color, religion, gender, national origin (ancestry), military status (past, present or future), disability, age (40 years of age or older), genetic information, or sexual orientation, as those terms are defined in Ohio law, federal law, and previous Executive Orders.
This order was challenged in April of 2011 in the case of Hutchinson v. Cuyhoga County Board of County Commissioners (N.D. Ohio 4/25/11), in which the county-level employee claimed that she was fired from her job because she was a lesbian. The employer sought dismissal on the grounds that sexual orientation is not a protected class. The Ohio federal court overturned the motion and permitted the sexual orientation discrimination claim to proceed to discovery.
The court agreed with the employer that Title VII does not prohibit sexual orientation discrimination. Because Hutchinson was a public employee proceeding under the United States Constitution, Title VII did not define the court’s limits. Instead, the court concluded that it could analyze the sexual orientation claim.
The findings, in part, read as follows:
The Court concludes that an employee who alleges sexual orientation discrimination … is not per se precluded from establishing an equal protection claim against her employer. Simply because Title VII does not include sexual orientation as a statutorily protected class does not, in this Court’s view, automatically remove all constitutional protection where a plaintiff employee claims equal protection violations based on her membership in that class…. Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer at least garner the bare minimum of rational basis review.
In other words, there is no blanket statewide protection of sexual orientation as a class, but Kasich’s executive order does call for public employers to treat public employees equally and fairly … and Pomeroy Village Council President Jackie Welker confirms that Pomeroy Village leadership agrees with this policy.
“Concerning the allegations of workplace discrimination between the Mayor of the Village of Pomeroy and a Pomeroy Police Officer, Village Council has no comment at the moment pending further investigation,” said Welker. “To that extent, we as a Village do not support discrimination of any kind to any persons based on sexual orientation, race, gender, national origin, age, familial status, disability or any other protected class.”
In the meantime, a case that draws some parallels to the current situation in the Village of Pomeroy continues to unfold close to home. In late 2011, two former employees of Pleasant Valley Hospital (PVH), Terry Greenwald-Hill and Amy Leach, filed a wrongful termination lawsuit against PVH, claiming they were fired because they are gay, which, according to Greenwald-Hill and Leach’s complaint, is a violation of the West Virginia Human Rights Act.
PVH CEO and Financial Officer Thomas Schauer denied the women’s claim, however, instead insisting that on March 18, 2011, upon his directive as interim chief executive officer, Greenwald-Hill and Leach were terminated as employees of PVH, based upon his belief that their terminations were in the best interest of the hospital. Schauer states the decision to fire the women was his and his alone.
The initial complaint stated the two women are asking for an award of damages including front pay and back pay, as well as compensatory damages for emotional distress, an award of punitive damages and reinstatement to their jobs at PVH.
The case has been assigned to David W. Nibert, chief judge of the fifth judicial circuit court which includes Mason County, W.Va.
At the federal level, there are currently no laws pertaining to the matter of discrimination based upon sexual orientation, but a bill was introduced to address these issue in the Senate and House of Representatives nearly two years ago.
The bill, proposed in April 2011, called for the prohibition of discrimination based on sexual orientation or gender identity in the United States. To date, it has not been brought to a vote.
Senate Bill 811 and House Bill 1397 would prohibit employment discrimination on the basis of actual or perceived sexual orientation or gender identity by covered entities which include employers, employment agencies, labor organizations and joint labor management committees. It would also prohibit preferential treatment or quotas and related retaliation.
In the Senate, the bill was last brought up in a committee hearing in June 2012. The last action in the House of Representative was in 2011 with several committees represented.
The bill, if passed as proposed, would provide for the construction of this Act regarding: (1) enforcement by employers of rules and policies, (2) sexual harassment, (3) certain shared facilities such as showers or dressing facilities, (4) construction of new or additional facilities, (5) dress and grooming standards, and (6) provision of employee benefits to married vs. unmarried couples. Declares that, in this Act, “married” refers to marriage as that term is defined in the Defense of Marriage Act (a legal union between one man and one woman).
Senator Sherrod Brown (D-Ohio) is one of the co-sponsors of the original bill. Neither the House of Representative or the Senate has voted on the proposed legislation.
Issues of possible workplace discrimination recently arose in the Village of Pomeroy when Village Council met in an emergency meeting last week to discuss allegations that Mayor Mary McAngus had discriminated against openly gay part-time Pomeroy Patrolman Kyle Calendine through various actions over the past few months. McAngus is accused of using offensive language to describe Calendine to his peers and superiors, repeatedly asking fellow Village employees for their opinions regarding Calendine’s sexual orientation while expressing her disapproval of his service to the Village, treating Calendine and his significant other differently than other public employees by ordering Calendine’s domestic partner to leave public police station grounds while heterosexual employees continued to entertain visitors during lunch and down time and blocking efforts to make Calendine a full-time officer.
Attempts to contact McAngus for comment were unsuccessful. McAngus told The Daily Sentinel last week that she had “no comment” when the newspaper broke the story, and calls to her office since that time have not been returned.
Pomeroy Village Council will meet for a regularly scheduled meeting at 7 p.m. on Monday at Pomeroy Village Hall.