With apologies to Tim Cook, companies can't just fire people because they're gay.
In Cook's statement of his own sexual orientation in Bloomberg Businessweek he justified revealing that he was gay for social reasons, noting what he sees as the potential for anti-gay discrimination in the majority of the country. "Still," he wrote, "there are laws on the books in a majority of states that allow employers to fire people based solely on their sexual orientation."
Frightening thought indeed. Cook is referring to a big talking point for those advocating that sexual orientation and identity be specifically added to state and federal anti-discrimination laws. States already ban discrimination on the basis of, say, race and gender. But sexual orientation and identity are areas where state adoption has been uneven. If you're gay in New York, for example, you are OK. If you are transgender, the law doesn't specifically protect you, as it does in California. Many states don't offer any protection for orientation.
It is the absence of laws specifically protecting LGBT rights in the workplace that has led to advocates saying that, in 29 states, you can be fired just for being gay. There's even a handy map to illustrate.
It's not that simple, though. In fact, it isn't true. It's more a politically charged mythology than solid law or common business practice.
Truth is, just because you can't not be fired for being gay, doesn't mean you can be fired for being gay. It is a hollow argument. While many states are so-called at-will states, where employers can terminate freely for all sorts of reasons, anyone who has ever hired and fired knows you need a full paper trail documenting poor performance to shield yourself against a host of workplace-discrimination or wrongful-termination claims. You cannot, as Cook and others suggest, walk in and fire someone "solely" for being gay. Nor are there "laws on the books" that allow it, as if these states someone wrote in protections for employers to fire gays at will. Sadly, Cook's rhetoric is misleading hyperbole.
What's more, there really isn't an absence of protections against anti-gay or anti-transgender terminations around the country. For that, you can thank the legislative interpretation of American courts.
First, let's look at sexual orientation. For many years, employees who tried to sue their companies for firing them because they were gay were generally pushed back by the courts because they specifically didn't have a federal protection under the Civil Rights Act of 1964. But then came a case in Pennsylvania in 2009, where an "effeminate" gay man was allowed to pursue his wrongful-termination claim in federal courts because his "gender stereotyping" constituted unlawful federal discrimination based on sex. The courts eventually agreed.
That was a big deal, legally speaking, because gender stereotyping was key to one of the biggest Supreme Court cases upholding federal anti-discrimination laws, involving a woman's inability to make partner at the former accounting firm Price Waterhouse. That 1989 ruling changed the way courts and businesses looked at sex discrimination against women.
Since the Pennsylvania case, more plaintiffs have used the federal prohibition on sex discrimination to apply also to sexual orientation, with much success.
The Equal Employment Opportunity Commission (EEOC), in the absence of a specific prohibition against discrimination for being gay, has extended its enforcement in a similar way. In two cases against the U.S. Postal Service in 2011, the EEOC ruled that gender stereotyping claims are indeed sex-discrimination claims.
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The EEOC took that even a step further to protect transgender employees in the case of a transgender woman named Mia Macy. Macy argued she was denied a position with the Bureau of Alcohol, Tobacco and Firearms because she was transgender. The EEOC ruled (in a unanimous, bipartisan decision, incidentally) that transgender issues are issues of sex, and therefore protected under federal law.
For some advocates, that isn't enough. Because it puts plaintiffs in the position of spending heavily just to prove they're protected, unlike, say, racial minorities, the absence of clear legal protections puts an unfair burden on gays and lesbians who want to bring these claims. A specific protection as an amendment to the Civil Rights Act would fix this ambiguity.
That may well happen, but in the meantime, all the momentum is on the part of LGBT employees bringing these claims, and the business community -- from startups to multinational corporations -- is listening. Businesses don't like ambiguity. It's costly. That alone is a free-market protection to workplace discrimination.
It's also why declarations like Cook's that 29 states can fire you "solely" because of your sexual orientation are misleading and unhelpful. If you manage a company in Pennsylvania, which offers no state protection, that doesn't mean you can fire an employee you don't like because he is gay. You could be taken to federal court or dragged before the EEOC for costly litigation. What's more, some states are taking a cue from federal courts and expanding their own sex discrimination laws to cover orientation and identity.
And it isn't good business. If you are an employer who fires someone because she is a lesbian, you aren't a great employer. You aren't surrounding yourself with the best employees you can find, because you are letting prejudices get in the way. Chances are, you treat your workforce badly, productivity is suffering and you're not putting customer needs first. Plus, you're a discriminatory ass.
The debate will continue over whether protected classes need to be expanded under the 1964 Civil Rights Act, and whether those expansions are worth the legal and regulatory costs to business associated with them. But that debate has to be based on facts. Here Cook fell dispiritingly short.
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