You Can Still Be Fired For Discriminatory Reasons, As Long As Your Boss Doesn't Tell You
Yesterday was a very exciting day! The Supreme Court — a very rightwing Supreme Court — decided that yes, sexual orientation and gender identity should be included in Title VII of the Civil Rights Act, making it a violation of that act for employers to fire someone for those specific reasons. People cheered, and some cried, fearing the loss of their "religious liberty" to discriminate against groups of people their God says are not as good as they are.
And I hate to be Debbie Downer here, but I do feel the need to point out that for the vast, vast majority of people in this country, Title VII is for decorative purposes only.
Because every state in America but Montana has at-will employment. This means that your boss can fire you for any reason, a bad reason, or no reason at all — so long as that reason isn't discriminatory. Unless they have fewer than 15 employees, in which case they actually can fire you for a discriminatory reason (federally, anyway, many states have lower thresholds).
If you think real hard, you can see what the problem with this might be.
If you can't think that hard right now because 2020 has scrambled your brain, let me lay it out for you — your boss can fire you for a discriminatory reason just as long as they don't tell you that. If they say "I'm firing you because your socks are ugly," or "I'm firing you for no reason at all, I'm just having a bad day and I feel like it," that is totally legal, even if the actual reason they are firing you is because they hate women or LGBTQ people or black people or Jewish people or older people or pregnant people or whatever.
Things are rarely that cut and dried. And even if they are, it rarely works out all that well.
People tend to think that it is very easy to sue an employer for discrimination. Conservatives love to talk about how all the poor job creators are just terrified that they'll lose everything they ever worked for to an overly litigious employees who took a "joke" the wrong way.
In order to actually take advantage of any of the protections in Title VII, you would first have to file an EEOC complaint. The EEOC will then investigate and tell you if you have a Right to Sue or not. If they find that you don't have a right to sue, you are shit out of luck. If they find that you do, you then have 99 days to get a lawyer to represent you and file a lawsuit. It will then cost you tons of money and potentially years of your life in order to actually go through with the lawsuit. It's especially difficult if it's just you as an individual and not a class action. And even if it is a class action suit with tons and tons of evidence ... you may be waiting forever.
For instance, a class action sex discrimination suit filed in 2008 by 70,000 employees of Kay Jewelers and Jared, with piles of objectively horrifying evidence and testimony, is still stuck in arbitration. Twelve years and those people have not seen jack shit.
Sterling Jewelers, the parent company, settled with the EEOC in 2017 by "consent decree," without paying a single dime and without admitting they did anything wrong. Their only "punishment" was having to institute some new anti-discrimination policies.
That is not how things should work. It also doesn't have to be how things work.
In most countries in the world (and also Montana), employers are only allowed to fire you for "just cause." That means, if they want to fire you, they have to give a good reason for it. You have to actually be doing a bad job or be doing something wrong otherwise. It can't just be that they don't like something about you, or because a new manager wants to bring in "their own team." This is called "just cause" terminations and it is what many people think is already the case.
Were we to have just cause terminations instead of at-will employment, it would be much harder to fire someone for a discriminatory reason, because the onus would be on the employer to show that they were firing someone for a just and fair reason, rather than on the employee to prove something that is almost impossible to prove.
Sure! The employer could go out of their way to make up things that the employee did in order to fire them, but that would involve a ton of effort, and thus make discrimination a lot more difficult to do and a lot more easy to prove than if all the boss had to do was say "I'm firing that person for no reason whatsoever."
It would make it so the protections of Title VII were accessible to all people, not just those who have the money and the time to fight for those protections in court.
But how does this affect me, someone who is not being fired!
In a thrilling variety of ways!
One reason women do not ask for raises is because they're afraid they'll be fired. And honestly, they're not wrong to fear that, because it does happen. If we actually want to close the wage gap, making it less scary for people who are not white men to ask for raises might help out a little!
It would also make it less intimidating for people to speak up when they feel they or someone else is being discriminated against if they don't have to first think "Okay, but how will I survive if I get fired? How will I pay my rent? How will I feed my kids?" And yeah, if they were super perfect people they would throw caution to the wind and do what is right and not care. But, you know, how would they feed their kids? People put up with a lot of bullshit just to survive and help their families survive, and it would be nice if they didn't have to.
Now, I realize that this is never going to happen in my lifetime and that people are super happy thinking "Yay! People can't be fired for being gay or trans anymore and that is that!" And, honestly, I don't want to dampen that because everything is such a garbage fire that any non-terrible news is a relief. But maybe it's a thing we could all start to think about, because it sure would be swell if our anti-discrimination laws actually prevented discrimination in the first place!
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse