U.S. District Judge James S. Gwin rejected a motion to dismiss a sexual orientation discrimination claim asserted by a lesbian employee against an Ohio county in Hutchinson v. Cuyahoga County Board of County Commissioners, 2011 WL 1563874 (N.D. Ohio, April 25, 2011). Although he dismissed some of plaintiff Shari Hutchinson's claims as time-barred, and also rejected an ancillary claim regarding the amount of monetary credit for opting out of the county's health insurance program, Judge Gwin found that Hutchinson's complaint that she suffered discriminatory denials of promotion and other unequal treatment in violation of the 14th Amendment's Equal Protection Clause during the two years prior to filing her 42 USC sec. 1983 complaint were sufficient to survive the motion to dismiss.
The County argued, somewhat incredibly in light of accumulated case law, that sexual orientation employment discrimination claims by a public employee are not actionable under the 14th Amendment because the federal courts within the 6th Circuit have adopted the analytical framework developed by the Supreme Court for analyzing complaints filed under Title VII of the Civil Rights Act of 1964 when they received discrimination complaints from public employees. According to the County, because sexual orientation is not a forbidden ground for discrimination under Title VII, such claims cannot be asserted against a public employer that is subject to Title VII.
Judge Gwin rejected this contention out of hand. "This logical leap," he wrote, "requiring imposition of all Title VII's standards and limitations in the employment-based equal protection context, is largely unsubstantiated. The Defendants exclusively rely on Title VII case-law to support their argument. And, for the proposition that an employee's sexual orientation discrimination claim under [42 USC sec. 1983] must fail because Title VII provides no right of action based on sexual orientation, the Defendants cite a single case: the Seventh Circuit's opinion in Schroeder v. Hamilton School District, 282 F.3d 946 (7th Cir. 2002). The Defendants do not mention, however, that the Schroeder court explicitly declined to import Title VII standards into its equal protection analysis. Id. at 951. Indeed, the Defendants misrepresent Schroeder's holding, which works against their argument by applying a traditional equal protection analysis to the plaintiff employee's sexual orientation discrimination claim."
Judge Gwin pointed out that the Schroeder court ultimately rejected the plaintiff's claim "because the plaintiff had not demonstrated the disparate treatment necessary to maintain an equal protection claim." He also pointed out that there were cases from within the 6th Circuit, precedential for a federal district court in Ohio, allowing gay public employees to assert equal protection claims.
Acknowledging that in the 6th Circuit the Title VII analytical framework is applied, Judge Gwin pointed out that the initial burden is on Hutchinson to allege facts suggesting that she was denied the promotions due to her sexual orientation, which burden he found to be met by the factual allegations in her complaint. This would shift the evidentiary burden to the County to articulate non-discriminatory reasons for its actions. If it met this burden, Hutchinson would lose the case unless she could show that the County's reasons were pretextual.
The Defendants also argued that Hutchinson's complaint failed to allege facts showing that the denials of her promotions were due to an "illegal policy or custom" of the County, which would be required to place liability on the County as such under Monell v. Dep't of Social Services, 436 U.S. 658 (1978). "At this early stage of the proceedings," wrote Judge Gwin, "and taking Hutchinson's factual allegations as true, the Court cannot say that Hutchinson can prove no set of facts that would support her entitlement to relief on a Monell claim against the County." He concluded that requiring her to plead more specific facts prior to discovery "would inappropriately burden" the plaintiff. "Particularly because imposing municipal liability depends on evidence of a municipality's often internal authorization or decision-making practices, the Court declines to place such a burden on Hutchinson at the pleading stage."
Hutchinson was unsuccessful, however, in her discrimination claim based on the health insurance credit program. If an unmarried County employee opts out of participation in the health insurance program, they receive a $50 credit against withholding per paycheck. If a married County employee opts out because they are participating in coverage under their spouse's insurance, they get a $100 credit. Hutchinson has a domestic partner whose employer provides partner coverage, and she opted out of the County plan to be covered under her partner's plan. But the County only extended to her the $50 credit accorded to unmarried employees. Ohio bans same-sex marriage and does not provide for civil unions or domestic partnerships. Hutchinson asserted that denying her the full $100 per paycheck credit was discriminatory, but Judge Gwin disagreed, accepting the County's argument that the line it was drawing was based on marital status, not on sexual orientation, and that different-sex domestic partnerships were treated no differently from Hutchinson's partnership. "Although this facially neutral policy may, at some level, disparately impact homosexual employees," wrote Gwinn, "it is not without a rational basis. In addition, to the extent that Hutchinson's claim really targets her inability to qualify for the $100 credit by legally marrying her domestic partner, that challenge is one better directed at the Ohio legislature's ban on same-sex marriage."