Last week I talked to a 25-year-old who is passionate about gay rights. She was very pleased with the recent federal district court ruling that the U.S. Constitution’s anti-slavery amendments guarantee a right to gay marriage. Was she now satisfied with the legal status of homosexuals? “Absolutely not,” she replied. “Lesbian, gay, bisexual, and transgender people can be fired by their employers.” Apparently the next peak to scale for gay rights activists is a statutory right for fired workers to sue companies.
I asked her how it would work. “If I fire a helicopter instructor and he sues me, how is the jury going to sort out whether I fired him because he crashed a helicopter or because I saw him using an iPhone?” She didn’t have an answer. “What if my employer has been unhappy with my performance and I’m afraid of being fired. Though I have no girlfriend or boyfriend, I show up every day driving a Miata and carrying a MacBook. Can I sue the company for firing me because they thought I was gay?” Finally I asked how I was supposed to know if my workers were gay. After all, sexual activity is conventionally conducted in private. Was it okay for me to ask them with whom they were having sex and what specifically they did with those partners? “They might bring their partner to a company social event.” I explained that helicopter flight schools did not typically host lavish social functions.
Some work in Congress has been done on this (link), but not successfully so far. A fatal flaw in the campaign seems to be the fact that there will not be any quotas for gay employees or other specific requirements for employers to hire gay workers. In the absence of quotas, a company would be better off hiring straight workers (assuming it could identify them) because such workers, unless they invested in Miatas and Apple products, would not have a statistical chance of imposing this new litigation cost on the company. Typically where the government has added new legal rights for a particular class of worker it has also imposed hiring quotas on employers, at least government employers and government contractors (i.e., on nearly 50 percent of the economy).
Separately she noted that gay workers were underpaid compared to equally skilled and hardworking straight employees, part of a theory that “companies always exploit vulnerable workers”. Thus there is an opportunity for a company with an all-gay workforce to make supranormal profits due to its low labor costs. She herself will not be taking advantage of this no-risk approach to making millions as she intends to spend her life working for the government or in non-profit organizations.
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