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January 02,2009

Cuyahoga County is sued for anti-lesbian job bias

Cleveland--Ohio’s largest county is being sued by an employee claiming discrimination because she is lesbian.

Shari Hutchinson of Willowick has worked for the Cuyahoga County Support Enforcement Agency since 2002. She says that she has been denied promotions, raises and given low performance evaluations after supervisors discovered she has written for a “lesbian porno magazine” and that her license plate bears her pen name, “PACK 8.”

Hutchinson sued the county December 19 in the U.S. District Court in Cleveland. She names the county commissioners as defendants, along with four of her agency’s administrators: Mary Jane Coleman, Tony Sharaba, James Viviani, and Joe Gauntner.

Hutchinson, who has a masters degree in business administration, says she has been kept in positions well below her ability, and attempts to move up have been thwarted by supervisors removing job postings that had been active for months when they learned she was interested.

Once she challenged that practice, Hutchinson says she was assigned to areas where she had no experience or training “as punishment” and retaliation.

According to the complaint, “CSEA, despite its obligations to comply with state and federal regulations which would have been addressed by filling the position, chose to honor the views of defendants Gauntner, Coleman and Sharaba that they, individually and collectively, did not want an openly gay person working in the critical area of policy development.”

The suit says that Viviani refused to recommend Hutchinson for a temporary position, openly telling management that she was “bizarre.”

The temp job went to a straight woman with less work experience, and Viviani paid a consultant to help her do the work, Hutchinson says.

Hutchinson is also challenging a new county-wide policy that begins this year.

To save money, Cuyahoga is giving married employees $100 per paycheck if they are on their spouse’s health insurance instead of the county’s.

However, Hutchinson, who is on her partner’s plan, is only getting $50 because they are not married, even though she is saving the county the same amount of money.

Civil rights attorney Avery Friedman of Cleveland, who represents Hutchinson, says this part of the suit will help other workers. He expects that Cuyahoga will find a way to change the policy before more employees challenge it in court.

“This could be a class action,” Friedman said. “But if Shari prevails, it would settle it for all.”

Friedman said he will be amending the complaint to say that the county is violating Hutchinson’s rights by making her magazine writing an issue.

Currently, no federal or state law protects an employee from discrimination by sexual orientation. Attempts to get courts to interpret laws to do so routinely fail.

Cleveland does have a 1994 ordinance barring such discrimination and Friedman wants the court to take notice of it, though he says “it has no teeth.” Hutchinson’s county office is in the city.

Friedman thinks Hutchinson’s case is different and has a chance to succeed. He believes the health benefits issue will be resolved quickly, in Hutchinson’s favor.

The harassment and promotion problems will be considered differently by the court, Friedman said, because he is not trying to create a back door to protection under Title VII of the 1964 civil rights act, as other suits have tried to do.

Friedman said courts have interpreted the 14th Amendment to the U.S. Constitution to forbid governments from causing discrimination and suffering that is arbitrary and irrational, which he says occurred here.

“We are also seeing the loosening of the ideological opinions that are troubling,” Friedman said about the federal courts.

He is pleased with the district judge assigned to the case, Judge Kathleen M. O’Malley, a Clinton appointee.

“This is a judge who looks at the Constitution broadly,” Friedman said.

The county must respond to the complaint by January 8.

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