Common Misconceptions About Employment Law: Laws that Don’t Exist

The holes in federal law make for some unpleasant state laws. But employers who value diversity can do something about it.

Rainbow_flag_and_blue_skiesA few years ago, I was chatting with a co-worker and casually mentioned something about employment law and sexual orientation. She says: of course you can’t fire someone who is gay because they are gay. I said: yes you can. Her misconception is common, but particularly now, in Trump’s America, it is very untrue.

There is no federal law stating that sexual orientation is a protected characteristic. At the time of this conversation, fewer than 12 states covered sexual orientation as a protected status. Currently, the number is in the 20s. But in more states than not, you can be fired for being gay. Under the Obama administration, the EEOC enforced Title VII as if it disallowed discrimination based on sexual orientation because of case law that says gender stereotyping is wrong. And the EEOC took the position that assuming an employee should be dating someone of a specific gender based on the employee’s gender is gender stereotyping. But Courts don’t always agree. And it is unlikely that, under Trump, the EEOC will continue to take this position. Because Congress refuses to add “sexual orientation” to the list of protected classes in Title VII, there is a hole in the law.

But the hole in protection under the law for terminations because of sexual orientation isn’t the only hole in the law most people aren’t aware of. Another stems from the rise of contract work. Independent contractors, those who are driving cars in ride shares or delivering your boxes same day from Amazon, fall into a black hole of protection under the law, including even state law. They aren’t protected from discriminatory practices under state or federal law. Then there is the rise of medical marijuana and what it means for employers. When popping a percocet is ok at work, but eating an edible on the weekend, arguably cheaper for many and maybe even better for you, is not. Even with the same health condition. And there are many other issues where federal law has left employees or workers without protection, like leave laws and wage and hour laws. In many of these arenas, state law is picking up the slack, but it creates an uneven patchwork of protection.

I’ll deal other topics in the coming weeks, but I want to start this week with the topic of sexual orientation and protected class, and why the issue of holes in protections are important to everyone, not just workers. First, a little background.

Employment law follows both societal mores and what is actually happening at work. There is a reason the McDonnell Douglas v. Green case was decided in 1973, and not 1901. There are many factors that fed the Civil Rights Act of 1964, and many reasons it, unlike its predecessors (three before 1890), managed to actually make a difference in the area of employment. But when people think of desegregation in the area of employment, sometimes people make the mistake of thinking it was something that happened over night. It wasn’t. Laws are only as powerful as the will to implement them. Society and laws must change together.

And this is why federal law is so important. It fills in the spaces between societal norms in different states. For example, there are places where black and white children went to school together long before the Civil Rights Act and the Supreme Court weighed in. Ford hired black workers long before the Civil Rights movement (and before they could legally live anywhere near his factory), because he knew it made business sense. Some companies will always make a business case for diversity, and be leaders in their field, even if the companies aren’t great in other ways. Some states are much more active about worker protections, and make the social case for equality before the federal government is even considering the topic. But most states, and many companies, will be brought along, kicking and screaming, by the federal government.

So what happens when this doesn’t happen? When Congress refuses to pass the bill, and when workers are denied protections, protections that are socially acceptable to a critical mass? Companies make up their own policies. State and local law fills in the gaps. And in the case of sexual orientation, it’s a lot of states, and a lot of company policies.

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But state legislatures go about it in lots of different ways. Lacking a federal floor, states implement as their legislatures see best. Any company located in two different states must be mindful of this. And prepare as best they can. Lack of protection for employees on the topic of sexual orientation is not just unpleasant for the employee. People care about these issues. They can make for sensational journalism. Even if you win the legal battle, an employer may still lose the public relations war.

So what should an employee do? My advice is for people to avoid living in places where they are second class citizens legally. While I understand the argument of being there to change things, you have to live through the changing. Both of my parents (who were born in 1959) were part of school desegregation in their hometowns. And they both remember it well, and those memories aren’t pleasant. Be a fighter if you must, but don’t lie to yourself about what this means for you in the long term. There are real mental and physical ramifications and wounds that come from being in those types of environments.

What should employers do? An employer must first decide what kind of company they want to be. If you want to be a company that keeps with the status quo, then by all means do so. However, be sure you are following the law in every jurisdiction you are located in. A lot of cities, in addition to twenty-two states, make sexual orientation a protected class. But if you decide you want to be a company that is a welcoming place to all employees, here is what I recommend:

  1. Think carefully about your policies. As an employment attorney, I have a list of policies that I think each company should have, as “best practice”. Some clients resist this. They are into “fad” policies, and have far too many. Or they think having more than one or two “aspirational” policies will alter their culture. People talk reverently about the latest tech success that had just two lines of company policy. I hope they are never sued for sex discrimination. My personal philosophy on this is that company policies serve the company. Only have policies that serve a goal. If a company truly does value diversity, and lives in a state where there are serious concerns from its diverse employees, their policies are a great place to illustrate that they value diversity.
  2. Walk the talk. If you value diversity, invest in and protect all of your employees. Be willing to speak up even when it isn’t legally required.
  3. Go on the record against bad state policy. If an employer values diversity, their local representative should know. Their state senator should know. The governor of the states where they do business should know. A company should use their social capital to show they do value diversity. The CEO should be willing to speak out if a jurisdiction where the company does business has policies that hurt employees. For example, the NFL, despite all of its failings, tends to do this very successfully. If more employers did, more states would have sexual orientation as a protected class.

The holes in federal law make for some unpleasant state laws. But employers who value diversity can do something about it.

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beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.