State of Kentucky Found Guilty of Workplace Discrimination
Workplace discrimination based on sexual orientation is not covered under Title VII of the Civil Rights Act of 1964, which protects workers from discrimination based on other factors such as race, religion and gender. However, certain Kentucky employees may be protected from sexual orientation discrimination by local ordinances and an executive order.
A few Kentucky areas, including Louisville, Jefferson County, and Covington have passed local ordinances that prohibit anyone from being discriminated against because of their sexual orientation. These ordinances cover discrimination in the workplace as well as housing and public accommodations. The only statewide protection was tested and upheld recently in Louisville, Kentucky.
In 2008, the Governor of Kentucky, Steve Beshear, signed an executive order that prohibits all state agencies from discriminating against current or potential employees because of their sexual orientation. Without this order, Governor Beshear stated “a gay person could be fired simply for being gay. A person should be hired or dismissed on the basis of whether they can do the job. Experience, qualifications, talent and performance are what matter."
This executive order was put to the test when a Kentucky Cabinet for Health and Family Services employee claimed he was terminated in 2009 because he was gay. According to the lawsuit, numerous cabinet employees were abusing email and internet use, but this worker was singled out because of his sexual orientation. The worker’s lawyer showed that he had sent emails that included gay slang, which was the cause for his termination. A female co-worker, on the other hand, had sent emails that included photos of almost completely nude men to other people in the cabinet, but she kept her job.
The cabinet defended this action, saying the decision to fire the male worker was made while he was still in his probationary period, whereas the female worker’s case wasn’t finalized until after she had become a full-time employee. Because of this change in status, she was protected by additional rights given to permanent employees. The fired worker’s lawyer had evidence showing that his case had been purposely rushed through in order to get him fired before he became a permanent employee. This included an email marked “high importance” from his supervisor requesting information immediately “because the state would like to be able to terminate the employee while in his probation period.” This same action was not taken against the female employee who had sent the nude pictures.
The U.S. District Judge that heard the case agreed with the employee that he had been fired because of his sexual orientation. Unfortunately, because the State of Kentucky is protected from having to pay damages of any sort, the wrongfully terminated worker will not receive any financial compensation, but he can ask the judge to have him reinstated in his job at the cabinet. Because he was terminated in 2009, he has since found new employment and is unsure whether or not he will return. In the meantime, he is very satisfied with the verdict.
This case illustrates that employment law is complicated. Some laws cover all workers across the country; some cover those in a certain city or state; still others only cover government workers but not private workers, or vice versa. If you think you have been subjected to discrimination, a hostile work environment, or workplace discrimination, it is important to contact an experienced Kentucky employment law attorney like Steve Frederick to determine what action can be taken.
Judge: Firing by state was improper; The Courier-Journal; Andrew Wolfson; May 1, 2012