Late last month, U. S. District Judge James Gwin denied summary judgment to the defendants in Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394). Shari Hutchinson alleged that she was denied several jobs in the county agency responsible for child support enforcement because she is lesbian. Hutchinson was able to produce indirect evidence of discrimination from statements by other employees to the effect that, while she consistently was ranked as a leading contender for the jobs, the Commissioners themselves repeatedly singled her out to block promotions despite excellent performance reviews.
Cuyahoga County is bascally the greater Cleveland area. Its voting patterns are heavily Democratic, so no surprise that there were official policies against discrimination based on sexual orientation when the alleged discrimination against Hutchinson occurred. According to the complaint, Cleveland has an ordinance barring such discrimination in employment and the county has the same provision in its employment policies. Unfortunately, these laws appear to have provided no protection for Hutchinson.
This decision is not of great legal import because it is unlikely to establish new law. Under the Fourteenth Amendment's Equal Protection Clause, public employers cannot treat lgb employees differently based on their sexual orientation without demonstrating a rational basis for doing so, and dislike of or discomfort with gay people does not satisfy even the rational basis test in ordinary public employment cases.
But the Hutchinson case does illustrate how employers that have adopted anti-discrimination policies or that are subject to local civil rights ordinances can nonetheless engage in informal, unstated, but repeated patterns of hostile conduct toward lgb workers. No form of law is a panacea, of course, but a federal law with the same authority as Title VII would be far more likely to be effective.
It's called ENDA.