In Inskeep v. Western Reserve Transit Authority, Matthew Inskeep, an employee at Western Reserve Transit Authority (WRTA), brought a claim against his employer for sexual orientation harassment and negligent infliction of emotional distress.  The trial court dismissed the employee’s claim finding that sexual orientation is not covered by the Ohio Civil Rights Act and negligent infliction of emotional distress is not a separate tort recognized in Ohio in the employment context. Inskeep appealed. 

Ohio law prohibits employment discrimination based on a person’s race, color, religion, sex, military status, national origin, disability, age or ancestry.  On appeal, Inskeep argued that although the Act does not explicitly prohibit sexual orientation discrimination, discrimination based on sexual orientation is discrimination because of sex.  Inskeep had little to support his position other than a definition of sex from stating that sex is “the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct.”  Notably, Inskeep did not argue that he was discriminated against based on his gender. 

In declining to extend the Act to cover sexual orientation discrimination, the Court drew an important distinction between same-sex harassment and sexual orientation harassment.  Cases of same-sex harassment are actionable only if the employee alleges he or she was discriminated against because of sex.  In a case of same-sex harassment, the sexual orientation of the harasser is not the relevant factor; rather, the Court must determine whether the harassment occurred because of the victim’s sex, i.e., gender. 

Despite concluding that sexual orientation discrimination is not actionable under the Ohio Civil Rights Act, the Court left the door open for future changes in the law that may prohibit such discrimination.  Specifically, the Court noted that the Ohio Legislature or Ohio Supreme Court could address the issue and decide differently. 

Although Ohio state law does not yet prohibit sexual orientation discrimination, it is possible that such protection will be granted in the foreseeable future.  About a dozen cities in Ohio prohibit sexual orientation discrimination, and state employees are protected as well.  Nationwide, several states and many cities protect against sexual orientation discrimination.  Thus, employers should consult counsel to help them determine whether their companies are susceptible to claims for sexual orientation discrimination wherever they operate.

Lindsay Bouffard focuses her practice in the area of labor and employment law.
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