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One of the biggest news stories of last week came from the world of sports, with NBA player Jason Collins becoming the first active male athlete playing for a major U.S. team sport to come out as gay. Several Sunday public-affairs shows tried to put Collins’ declaration into historical context.
CBS’ Face the Nation invited retired tennis great Martina Navratilova, among others, to discuss its significance. Navratilova came out as gay more than three decades ago.
"I think when President (Barack) Obama came in favor of … gay marriage, that really changed the tide. But we have to remember that this has been a long time coming," she said. "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. ... We don't have equal rights."
We wondered whether Navratilova was correct that "in 29 states in this country you can still get fired for not just being gay, but if your employer thinks you are gay."
According to the Human Rights Campaign, a gay-rights group, 21 states plus the District of Columbia explicitly prohibit employment discrimination based on sexual orientation. The remaining 29 do not. (This map shows the legal situation by state.)
We should note that the 29 states in question are defined by the absence of a law prohibiting discrimination based on sexual orientation, rather than the presence of a law allowing such discrimination. This means employees in these states who believe they are discriminated against would not have grounds to win a lawsuit alleging discrimination. The group said that it’s possible for an employer to discriminate based on the perception, rather than the fact, that someone is gay.
But while Navratilova gets the number right, our discussions with legal experts produced a few exceptions to the rule:
• Government employees in those states have protections. Government workers are covered by the equal protection clause of the 14th Amendment to the U.S. Constitution. 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.
In addition, nine other states -- beyond the 21 that currently ban discrimination based on sexual orientation -- have an executive order, administrative order or personnel regulation that prohibits such discrimination against public employees, according to the Human Rights Campaign.
• 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, according to the Pennsylvania Diversity Network. According to the group, 12 of the 15 most populous cities in the Keystone State have anti-discrimination laws that cover sexual orientation, meaning a sizable percentage of employees in the state are covered even without a state law.
• 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.
• 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."
Hayley Gorenberg, deputy legal director of Lambda Legal, cited the 1989 Supreme Court case Price Waterhouse vs. Hopkins. In that case, a woman sued the accounting firm where she worked because she was not offered a promotion after a senior manager told her she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The plaintiff convinced the court that sex stereotyping constitutes sex discrimination, Gorenberg said. This precedent could protect a straight person who appeared to an employer to be "gay" and suffered discrimination as a result.
Gorenberg said that despite these exceptions, Navratilova has a point. She said that calls to her group’s national legal help line include a "very high percentage" of workplace discrimination complaints. "Without specific national protection, people are fired based on their sexual orientation far more easily," she said.
Navratilova said, "In 29 states in this country you can still get fired for not just being gay, but if your employer thinks you are gay." If you frame this statement in the context of blanket protections by states, she’s correct. Still, even in those 29 states, many gay and lesbian employees do have protections, either because they work for the government, because they live in a city that bars such discrimination, or because they work for a company that has pledged not to discriminate based on sexual orientation. On balance, we rate Navratilova’s claim Half True.
Martina Navratilova, interview on CBS’ Face the Nation, May 5, 2013
Human Rights Campaign, "Statewide Employment Laws and Policies," accessed May 6, 2013
Pennsylvania Diversity Network, summary of local anti-discrimination laws in Pennsylvania, accessed May 6, 2013
U.S. Supreme Court, Price Waterhouse v. Hopkins, 1989
Email interview with Walter Olson, senior fellow at the Cato Institute, May 6, 2013
Email interview with Vik Amar, law professor at the University of California (Davis), May 6, 2013
Email interview with Kermit Roosevelt, University of Pennsylvania law professor, May 6, 2013
Email interview with Ilya Shapiro, senior fellow at the Cato Institute, May 6, 2013
Email interview with Hayley Gorenberg, deputy legal director of Lambda Legal, May 6, 2013
Email interview with Charles Joughin, spokesman for the Human Rights Campaign, May 6, 2013
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