Thursday, March 28, 2013

Sexual Orientation in Springfield

As a college student, my employment law and managerial courses focus on Federal law rather than state or local laws. To compensate for this, I keep an eye on local and state news to help keep me up-to-date on new or pending laws so that I can respond intelligently to interview questions regarding laws that are unique to Missouri or Springfield. I was browsing through the local newspaper online when I ran across an editorial piece that discussed an issue that the Springfield City Council has been asked to reconsider.
city hall, springfield, missouri
"City Hall, Springfield, MO" by Al Turner CC By-NC-ND 2.0

The Main Issue

According to the editorial, the Springfield City Council is being asked to pass a law that would prohibit employers from discriminating against a person based on that person's sexual orientation or gender identity. The article went on to argue that forcing employers to overlook a person's sexual orientation or gender identity during the hiring process was unconstitutional because it violated the employers' right to "free exercise of religion" in that it would force employers to "hire someone living a life inconsistent with his or her belief system."

 A Second Issue

I was doing some historical research to determine how many of our nation's current anti-discrimination laws overcame similar arguments when I realized that there was something about the "religion" argument that bothered me, but I couldn't put my finger on it. I abandoned my research and began playing Solitaire on my computer, and then it hit me!
"Philips Lightbulb" by Dennis van Zuijlekom CC By 2.0
How would these employers know about a person's sexual orientation or gender identity unless the person somehow identified her/himself as being gay, lesbian, bi-sexual, or transgender? To answer this, let's consider a few ideas:
  • Not all gay, lesbian, bi-sexual, or transgender individuals engage in cross-dressing.  
  • The EEOC recommends that employers refrain from asking about a person's marital status during the hiring process. 
  • It is unlikely that all gay, lesbian, bi-sexual, or transgender individuals volunteer this information during the hiring process.

Assumptions and Stereotypes

If the individual isn't volunteering this information, or otherwise explicitly identifying her/himself, then perhaps the interviewer is making assumptions about the individual based upon society's expectations of how a woman or man is "supposed" to act. Correct me if I'm wrong, but isn't that considered stereotyping?

If this is true, then wouldn't the Supreme Court's statement, "Evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent," (Price Waterhouse v. Hopkins, 1989) apply in situations where the person didn't volunteer this information? If an employer assumes that an individual is gay, lesbian, bi-sexual, or transsexual because of how that individual acts, and decides not to hire the person based upon gender stereotypes; could the employer's actions be considered discriminatory and illegal?

Opinions? Corrections? Comments?

Personally, I believe that basing a decision to not hire an individual because of gender stereotyping is discriminatory and violates the spirit of Title VII. However, I may be over-thinking this issue, or I may not fully understand it. What do you think?

2 comments :

  1. I agree with you, but what company is going to admit that is why they didn't hire someone?

    ReplyDelete
  2. You would be surprised by the number of supervisors or managers who aren't careful about what they say, especially when they think they are right.

    You do bring up a good point. From what I've seen while performing research on race or religious discrimination cases, usually the individuals filing the claims discovered that the person who was hired or promoted over them had less experience or had fewer qualifications than they did.

    Sometimes it's a case when both scenarios apply; the supervisor or manager said something to the individual or someone else who told the individual, and the actions coupled with the alleged remarks pointed to intent.

    ReplyDelete

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