Yesterday, a fellow employment law blogger, Jon Hyman of the Ohio Employer’s Law Blog, made an interesting post.  Sexual orientation discrimination by an employer is still legal in Ohio, so some creative plaintiff’s lawyers in Ohio have argued that the employers’ actions constituted religious discrimination because the plaintiff employees’ lifestyles did not comport with their employers’ conservative religious views.  

For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.  However, Pedreira also sued for religious discrimination claiming that living openly as a lesbian was not in line with her employer’s religion and that she was terminated because she did not hold the employer’s religious belief that homosexuality is sinful.  The 6th Circuit disallowed the employee’s religious discrimination claim.

As another example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed an effeminate gay man to bring a sexual harassment claim based on allegations that his co-workers called him names such as Princess and faggot.  However, Prowel also sued for religious discrimination claiming that his co-workers harassed him because his homosexuality was against their religious views.  The 3rd Circuit disallowed the religious discrimination / harassment claim.

As we know, sexual orientation harassment and discrimination are illegal under California state law, but according to, sexual orientation discrimination remains legal in 29 other states.   It also remains legal under federal law until Congress passes the proposed Employment Non-Discrimination Act of 2009 ("ENDA").  

So, what is the status of the ENDA?  It was introduced into the House on June 19, 2009, by Massachusett’s Democrat Barney Frank, and on July 23, 2009, it was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.  

Although sexual orientation discrimination and harassment is already illegal in California, awareness of the ENDA will be crucial for workplace investigators who handle EEO investigations for federal employers, agencies, and contractors.