On Monday, a federal judge in Ohio ruled that a county worker could claim protection under the Fourteenth Amendment's Equal Protection Clause against employment discrimination based on sexual orientation. The government argued that the plaintiff, a lesbian, could not assert an Equal Protection claim because Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, does not include sexual orientation as a protected class. The judge rejected this argument:
"Simply because Title VII does not include sexual orientation as a statutorily protected class 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.... Though sexual orientation may not be a suspect or quasi-suspect class, the Court finds that constitutional disparate treatment claims alleging sexual orientation discrimination by a public employer at least garner the bare minimum of rational basis review."
The decision in Hutchinson v. Cuyahoga County Board of County Commissioners could have far-reaching implications. Sexual orientation is usually considered an unprotected class under federal law. The fact that the judge ruled that sexual orientation only receives rational basis review certainly limits the practical import of the decision. Nonetheless, it will be interesting to see the effect that this decision has on the development of case law on sexual orientation discrimination.