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Gay Revenge Porn Sparks Employment Discrimination Lawsuit

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When does a crime become a violation of employment law?

Columbus, OHAntonio Tomaro brought an employment discrimination lawsuit against J.P. Morgan Chase Bank, his former employer, claiming that he was terminated because he was gay. Tomaro v. J.P. Morgan Chase Bank N.A. is not an unpaid wages claim, but an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964 and Ohio state law.

The facts are complicated, but federal law is now fairly clear. How it bounces around with state criminal law remains a puzzle.

Since the U.S. Supreme Court’s ruling in the consolidated cases of Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Title VII has been understood to protect individuals from employment discrimination rooted in sexual orientation and gender identity.

How that relates to Ohio criminal law concerning revenge porn is an open question. How the District Court for the Southern District of Ohio will apply the law to the facts in Tomaro is also an open question. The lawsuit was filed on October 20 and is still in preliminary stages.

Romance gone wrong


According to the Complaint, Tomaro dated a man in 2020, but terminated the relationship after the man became violent. Thereafter, his former dating partner allegedly stalked and harassed him.

Someone, who Tomaro believed to be his harasser, impersonated Tomaro and emailed nude photographs to his supervisor. Chase then put Tomaro on administrative leave. When he returned from leave, he was required to participate in several “personal improvement plans,” which were essentially progressive disciplinary measures.

Blame the victim?


Tomaro voiced his concerns about what he perceived to be discrimination to the Human Resources department at Chase and the Ohio Civil Rights Commission. He was fired shortly thereafter.


His lawsuit claims that the discriminatory treatment actually began in 2017, before the revenge porn incident, when he was propositioned by a branch manager and thereafter transferred to a less desirable location. He also cited more favorable treatment of a female heterosexual co-worker who was the victim of similar harassment at work. Chase claims that his termination was for non-discriminatory reasons, including failures of personal judgment in either sending the photos to his supervisor or allowing them to fall into the possession of his harasser.

What is “sex”?


Title VII prohibits  employers from discriminating based on color, national origin, race, religion and sex. Until the Supreme Court’s decision in Bostock, it was not clear whether sexual orientation and gender identity were covered under the ban. The question was whether the term “sex” referred only to gender differences, as was likely intended when the law was enacted more than 50 years ago.

Bostock (as the consolidated cases are known) settles that question. As Justice Gorsuch wrote for the majority,
"In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee," the opinion said. "We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."

If, therefore, the District Court determines that Tomaro was fired because he is gay, then Chase violated his civil rights under Title VII. The fact that Chase appears to have gone through progressive disciplinary steps and can argue non-discriminatory reasons for his termination complicates the issue.

Ohio Civil Rights Act


The Ohio Civil Rights Act protects Ohio workers on the basis of race, color, sex, religion, disability, national origin, ancestry, age and military status. Before Bostock, Ohio courts had not interpreted this to extend to sexual orientation or gender identity. In 2019 statewide efforts were underway to change this through the proposed Ohio Fairness Act (HB369). In 2020, however, momentum stalled as pandemic-related bills took priority. The good news is that, in light of Bostock, the Southern District could still act to bring Ohio law into conformity with federal precedent.

Ohio Revenge Porn Law


Until recently, there was not much that a victim could do to stop revenge porn because even if the images were consensual, their distribution was not. In 2019 the Ohio legislature fixed this loophole. Under the new law, it is a crime to distribute sexually oriented pictures and videos if the image is disseminated with intent to harm the person in the image. It is not yet clear how Ohio has allocated resources to enforcing the law.

Connecting criminal and civil rights law


The tricky thing about revenge porn is that it relies on the reactions of third parties – friends, neighbors, families or employers – to do the harm intended by the purveyor of the porn. The purveyors delegate the dirty work of reputational or economic damage to them. It’s a vigilante strategy.

The target, whose images have been shared, is a victim. The third parties are also dupes.

So, what shall we do? This is a hard question, but leaving the victims of crimes to pursue civil remedies against employers who have acted as the agents of the criminals is not a satisfying resolution.

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