Federal Judge Applies Fourteenth Amendment to Sexual Orientation Job Discrimination Claim

Posted by Chris Geidner
April 27, 2011 5:44 PM |

Here's the report from Harlan Spector at The Plain Dealer:

CLEVELAND, Ohio -- A federal judge ruled Monday that a gay Cuyahoga County worker can claim constitutional protection in her job discrimination lawsuit against the county.

The ruling involves Shari Hutchinson, a lesbian who works for the county child support enforcement agency. Hutchinson sued the county in 2008, claiming she was denied promotions based on her sexual orientation, and that administrators retaliated against her when she complained.

U.S. District Judge James Gwin ruled that Hutchinson's claim falls under the equal protection clause of the U.S. Constitution, a decision that her lawyer described as far-reaching and unprecedented.

Reviewing the opinion, here are the key two paragraphs:

[T]he Court concludes that an employee who alleges sexual orientation discrimination under § 1983 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. The Court is not convinced that application of Title VII’s framework—i.e. the McDonnell Douglas/Burdine framework, Singfield, 389 F.3d at 566-67—requires wholesale application of Title VII’s limitations on what classes are protected whenever an equal protection claim arises in the employment context. 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.

Accordingly, because Hutchinson’s complaint states that the County did not hire or promote her to a number of positions for which she was qualified because of her sexual orientation, and that the County did not treat heterosexual job candidates similarly, the Court finds that Hutchinson has pled plausibly actionable equal protection claims under § 1983.

Gwin found that current precedent in the U.S. Court of Appeals for the Sixth Circuit, however, means that "Hutchinson's equal protection claim should ultimately be subject to rational basis review," which is the lowest level of scrutiny and requires only that any "discrimination was not rationally related to a legitimate state interest."

Gwin's opinion and order was in response to a request from the county for a decision to dismiss the case on the pleadings. The case now moves forward to discovery and a possible trial.

Read Judge Gwin's opinion and order in Hutchinson v. Cuyahoga County Board of County Commissioners: HutchinsonOrderOpinion.pdf

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