In most of the US you could come right out and tell Waiter A “I don’t want any queers working here, you’re fired” without violating any laws. Wikipedia has several maps showing which states/counties/cities offer LGBT folks protection from employment discrimination. If you’re not in the dark purple or dark blue areas then as a hypothetical small business owner you’d be free to discriminate against homosexuals all you like when it came to hiring/firing.
How about this: one of my waitresses comes in on Monday acting just a little different. I cannot quite place what it is, but over the course of several days, some of the customers start complaining that she is jesusing all over them and they are not liking it. I obviously cannot fire her for being religious, but she was, as far as I could tell, religious last week, there was just some kind of retreat or conference over the weekend that changed her. How do I handle this, set up eucharist tables?
Before continuing, allow me to refocus a little, considering the large number of thoughtful replies on many areas of law and anecdote.
I’m most interested at the momemt, in “the appearance” aspect of employment protection: such as the ones cited upthread for Federal employees and in NYC, and, most important, how they may or may not be linked under contest to “protected classes.”
As is clear to most, the examples A) and B) specifically do not describe explicit action of the waiters where they say “I’m gay” or “I look like a threatening felon”–and in fact they may be excellent and pleasant waiters. (Or not. Otherwise, as pointed out upthread, I could be an asshole boss, and might have to gin-up something to show cause. Let’s leave that out until necessary.)
I note that so many people came to the conclusion that the hypothetical waiter is gay without “verifying” it. It’s an easily made assumption, which is my point. There’s a slim chance that he is not, but likes to act that way; he’s an acting student; who the hell knows?
But here it is:
- Waiter A, or public employee of any kind, can fall back on protected class (I learned this word from this thread. Correct me if I’m using it incorrectly)–based on who’s opinion of “appearance?”
Once again: I think all Jews have big noses and (if anyone cares, but it’s none of their business) should be proud of their flag of Jewish identity. (I’m ready for the posters upthread who called me homophobic to call me an anti-Semite). I employ a Greek woman with a huge honker and she returns from vacation with a nose job. I don’t like the fact that because her nose is small, I believe my clientele are turned off/not coming–whether I run a store, public service, or because it’s Tuesday and I think I can get away with it… I fire her.
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She sues me on the grounds of religious intolerance. Are lawyers going to have to decide on Jews’ nose length?
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[Involved in 1)]: How does the court determine if she’s Jewish, in order for her claim to have merit?
[Two comments added here as statements because I am not able to weave them coherently into what is a general question:]
As to 2), a similar question is how many drops of blood makes you white or black, if such a determination is necessary or can be challenged in a racial discrimination suit.
And, I’m aware of cases where small-breasted women have sued Hooters for discrimination of one kind or another. Hell, perhaps a man or two have sued them for some knd of similar reasons.
Wouldn’t this ruling logically outlaw discrimination based on sexual orientation? IOW, you fired a male employee because he has sex with men outside the job. You wouldn’t have fired a woman for having sex with men outside the job.
Hence, this is illegal gender discrimination…???
District of Columbia Human Rights Act;
Part B. Employment.
§ 2-1402.11. Prohibitions.
(a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin. sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual:
Now, does this mean, excuse me to be blunt, the ugliness of a person, or does it mean a person with long hair, tatoos, rings in noses, etc??
You also see the part about gender identification OR expression. This means if a person acts gay, feminine, through gestures etc, they are also protected.
This is in line with your original question about mannerisms, but you also do not live in DC.
The “convicted Felon” look is a slam-dunk. You can require appearance and dress codes as long as they are not unreasonable. (“I’m going to fire anyone who doesn’t get a bar-code tatoo on their forehead - our new theme is Restaurant of the Future.”)
Whether you can fire someone for 'appearing gay"…
In some places, you can fire anyone as long as it’s no a “protected class” reason.
In some places, “gay” is not a protected class.
Whether “appearing gay” is equal to “because you’re gay” - well, better be able to afford good lawyers.
The interesting bit about the Greek/Jewish analogy - presumably if someone claims to be Jewish in court, they would have to provide some assertion under oath that they are 9were at time of firing); that the employer knew or believed this to be the case; and that whatever the employer said or did or pattern of behaviour indicated they fired the employee because of this. It helps if the boss is stupid enough to say all this clearly in front of multiple employees.
Hmm, lets get even more absurd.
Can you fire someone in your all-nudist restaurant if they show up newly circumcised after a vacation? If they did it for religious reasons? If they did it for personal preference?
IIRC, for religious reasons you have to make “reasonable accomodation” - i.e. unless the issue figures into things, why should you fire for it? (Just like wearing a yarmulke or a turban…)
Hopkins hasn’t been taken to outlaw sexual orientation discrimination, but you are right that it tends to point in that direction, a fact not lost on LBGT advocates and other thinkers about law and gender/sexual orientation.
Others have called this a “transvestic” use—that is, the problem sex discrimination protections were passed to address are difficulties faced by women in the workforce, and using them for something else is dressing up sexual orientation protection in sex discrimination clothing.
Obviously, when Title VII’s sex discrimination protections were passed, gays and lesbians were not in mind. (But also, I think one can say that hostile work environments were also not in mind — not because those are not actually sex discrimination, but because of a poverty of imagination by the legislators of the era.)
However, there is plainly a connection between taboos regarding homsexuality and notions of masculinity. Preferences for traditional gender roles were used to prevent Hopkins from advancing, and her lawsuit established the proposition that such preferences for traditionally expected behavior cannot be used to forestall a woman’s advancement. The only difference between a heterosexual person of gender G and a homosexual person of gender G is the gender of the person with whom they form romantic attachments. So, while it may not have been anticipated by the legislators enacting Title VII (which is fine, after all, as Justice Scalia is wont to remind us, legislatures pass laws, not intentions or expectations), I think a colorable connection between sex discrimination protections and sexual orientation discrimination protections exists.
But the underlying question is not about actual sexual orientation but perceived orientation. In other words, we cannot reasonably assume that the waiter was not gay before his vacation, it was just not blatantly obvious. By the same token, we cannot assume that he is now gay, he may be straight but for some reason has taken to acting effeminately. (All the while, ignoring the issue of bisexuality.) So, if you did not fire the waiter because he seemed relatively straight, can you fire him because he seems gay (which, presumably, clashes with the restaurant’s atmos)?
I would say yes, because he is not complying with your standards of work performance.
Not in places like New York City that have a local anti-discrimination law that covers perceived homosexuality (and perceived disability, perceived race, etc.), but in most places, yes.
If you fire someone because you think they are Jewish/Moslem/black/old/Italian/gypsy, and it can be proven that was the motive - I imagine it does not matter whether they are or not a member of the protected group. Your action was illegal (I would imagine) because your motive was to discriminate, so you acted in a way the law forbids. Motive goes to the heart of discrimination law; something you could otherwise do - fire someone because you think they are dressing bad - becomes illegal if the motive is instead because they are black or gypsy.
In most places you can fire someone for actually being gay. Most places are backward.
If you can convince a jury that mincing annoys you for reasons having nothing to do with homophobia, and the firing offence is mincing qua mincing, it should be fine, though I admit that’s a rather tough sell.
But, As I suggested in my long post above, say I want to challenge such a “perceived” or “appearance” suit (a protected class, i now see)–combined with, inevitably, a second charge regarding prevention of discrimination on basis of sexuality or religion. (I think this is always a plaintiff’s take-one-get-one-free, BTW, and it smells lousy to me [speaking as Leo].)
I would then leave it to plaintiff to show in court how the mincing, etc., islinked to homosexuality. It should be quite a trial, no?
Equivalently, as in that post (I put a lot of work into it:)), I could challenge the fact of someone’s “Jewishness” or his racial “African-American-ness.”
(One thinks of course of the President and the spanking new racial category invented by the media since Zimmerman/Little, the White Hispanic.)
LOL… Good luck with the “Prove you’re actually and/or apparently black. PROVE IT!!” defense.
If one is a stupid person, possibly.
I don’t know about your state rules, but in Ohio the “burden of proof” in a civil suit is simply by a “preponderance of the evidence” and additionally, a civil jury verdict need NOT be unanimous, only 3/4 if I am not mistaken, depending on the size.
I agree with the intent of the law and disagree with the holding in Hopkins. However, if the Court continues that holding, it can’t help but follow the logical conclusion that sex discrimination would outlaw discrimination against sexual orientation for the reasons I mentioned.
What’s with this assumption that “mincing” and other stereotypically gay mannerisms are effeminate and not just odd for either gender? I have a friend right now who I figured out was gay just by his mannerisms, and yet his mannerisms are nothing like that of any woman I’ve met. For example, the gay lisp sounds like nothing that women actually do.
At most, stereotypically gay mannerisms are exaggerated feminine mannerisms. But most of the time they seem to be their own thing.
Oh, Mary, where DO I get myself bonked by one of those coconuts? Here, set me up against this Magic Coconut Palm… ooh, that feels perrrrfect… now, play some Donna Summer. I’m going to shake this wrinkly old ass until SOMEthing loosens up. Might be a coconut, might just be this ol’ boytoy’s LIH-BEE-DO!
Near as I have always known, you can fire anyone for anything (I live in PA which is an AT WILL state). HOWEVER, once you start show discrimination, you run the risk of getting someone all up in your business with it.
So, if your username here cannot be attached to you in the REAL WORLD, just go and fire them both and just tell them that their service isn’t up to snuff for you and that is that.
However, if they can find this thread and recognize you, you can be in for a world of pain…