So you probably heard about Jason Collins, the sportsball man who said he was gay last week? And almost everyone said, Oh, that’s nice, sure, except for the usual crowd of jerks? And of course we all know that Collins was not really the first gay sportsball man, or even the first gay sportsballer or anything, because that person’s identity is Lost in the Mists of History. But anyway, one of the first sportsball people to be openly gay, the awesome hulking Slavic lesbianista Martina Navratilova, made the rounds of the news programs to talk about the social significance of Collins’s being out, and on CBS’s Face the Nation said this:
“We still don’t have equal rights. I have been getting [questions] on Twitter, ‘Why does this matter? I don’t care.’ Which is kind of code for, ‘I really don’t want to know.’ But it does matter because in 29 states in this country you can still get fired for not just being gay but if your employer thinks you are gay.”
And so Politifact, which now apparently is fact-checking retired pro athletes, to contribute to serious political discourse, checked into Navratilova’s claim, determined that employers in 29 states can indeed fire people for being gay, and rated Navratilova’s statement as “half true,” because it turns out that there are a few exceptions. The Politifactualists seem to have forgotten that they have a category called “Mostly True” for things that are, you know, mostly true.
But what are these exceptions? First off, the Politifrackers acknowledge that 21 states and the District of Columbia “explicitly prohibit employment discrimination based on sexual orientation,” and that in the 29 states that do not have such laws,
“employees in these states who believe they are discriminated against would not have grounds to win a lawsuit alleging discrimination.”
OK, so Navratilova was right, and her statement is true, right? Well, no, you see, because what she said took a single sentence, and there are paragraph-length exceptions:
- Government employees in those states have protections.… A public employee can establish a violation if they can show they were subjected to adverse treatment when compared with other similarly situated employees, and that the treatment was motivated by an intention to discriminate on the basis of improper considerations, according to Lambda Legal Defense, a legal organization focused on challenging discrimination against lesbian, gay, bisexual, and transgender individuals. Courts have backed the idea that sexual orientation is one of the categories that would permit such a lawsuit.
Also, another 9 states have executive orders banning discrimination against gay public employees, so there’s that.
- Localities may have an anti-discrimination law even if their state does not. To give just one example, Pennsylvania has no statewide law, but many of its cities do, from Philadelphia and Pittsburgh all the way down to Jenkintown and Susquehanna Township…meaning a sizable percentage of employees in the state are covered even without a state law.
True enough — Yr Doktor Zoom’s home state of Idaho just loves discriminating against the gheys, but it’s also true that Boise and several other cities have anti-discrimination laws.
- Individual employers may have policies that bar discrimination based on sexual orientation, even if their state or city does not. “Some employers, through union agreements, company handbooks or other contracts, may have explicitly or implicitly promised to refrain from certain kinds of discrimination, and these provisions, depending on the particulars, might protect some employees against irrational discrimination of this kind,” said Vik Amar, a law professor at the University of California at Davis.
So, yes, if you are lucky enough to work at one of these firms, you can park your Subaru wagon with the rainbow-flag sticker in the lot without fear. No telling how many of these companies are actually located in states that allow discrimination, but we’re sure they exist — for instance, even before Boise passed its antidiscrimination law, Hewlett-Packard already had a nice pro-diversity policy for years, and in 2004 a court upheld the firing of a jerk employee for posting anti-gay Bible quotes all over his cubicle.
And then there’s possibly the most nitpicky — but still maybe relevant, because we won’t pretend to be a lawyer — exception:
- Title VII of the Civil Rights Act provides protection for employees who are subjected to gender-based stereotyping. This is relevant because Navratilova said you could get fired “if your employer thinks you are gay” — not just if you are actually gay. While the Civil Rights Act currently protects only sex discrimination and not discrimination based on sexual orientation, gender-based stereotyping can include elements that overlap significantly with an employer “think(ing) you are gay.”
So there you have it: Navratilova is right that in 29 states you can be fired for being gay, BUT, depending on where you work and where you live and how the courts decide your case, maybe not in all cases. Which leads Politifact to the obvious conclusion that Navratilova is correct if you look at the facts of what she said. But if you do not look at the facts of what she said, she could be wrong.
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