Judge: Anti-gay job bias may be unconstitutional

Ruling allows CuyahogaCounty worker�s suit to go forward

by Anthony Glassman

Cleveland--A federal judge ruled on April 25 that a job discrimination lawsuit against Cuyahoga County can go ahead, saying that her claim of anti-gay bias falls under the equal protection clause of the Constitution.

But U.S. District Judge James Gwin rejected Shari Hutchinson�s claim that she was also discriminated against by not getting the $100-per-paycheck benefit given to married employees who are covered by their spouses� insurance plans. The county views her as single, so she gets $50 per paycheck for opting out of county-provided health benefits because she is covered on her partner�s plan.

Hutchinson, a lesbian working for the Cuyahoga County Support Enforcement Agency, filed suit against four of the organization�s administrators, along with the county commissioners, in December 2008.

She began working in the agency, which enforces child support rulings, in 2002, but says that she has been denied raises and promotions and been given low performance evaluations since supervisors found out she has written for a �lesbian porno magazine� under a pen name.

Hutchinson has a master�s degree in business administration, but says she has been kept in positions below her skill level. She also alleges that whenever she expressed interest in a posted job opening, her supervisors would remove the listings.

When she complained about the treatment, she was given jobs outside of her realm of experience and training in retaliation.

In one instance, administrator James Viviani allegedly refused to recommend her for a temporary position, telling management that she was �bizarro.� Instead, a heterosexual woman with less experience was put in the position, and Viviani had to pay a consultant to help fulfill the post�s responsibilities.

Gwin ruled that, while the Title VII civil rights law �does not include sexual orientation as a statutorily protected class,� it �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.�

Gwin also said that Hutchinson�s case seems �plausibly actionable,� but noted that current precedents would require the lowest level of proof on the part of the county that the discrimination was �rationally related to a legitimate state interest.�

Cleveland, where Hutchinson works, has an antidiscrimination ordinance barring anti-gay bias in employment, housing and public accommodations. The 1994 measure was changed in 1996 to allow criminal charges to be brought in cases of job discrimination, but it is seldom enforced.

Councilor Joe Cimperman is pushing for the ordinance to be enforceable by civil lawsuits, which he says would give it more muscle.

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