Monday, January 12, 2009

Working while Gay - Equal Protection Issue

Yesterday, reported an interesting story out of Tennessee.  Apparently, Mr. David Hill was fired by a hotel owner for being homosexual.  Let’s talk about this in four ways.

First, let’s pretend for the moment that the hotel is a state actor so that the Fourteenth Amendment will apply.   Under the Fourteenth Amendment, why should such an action not violate the equal protection clause?  Even if one assumes that rational basis review would apply, how would such an action be justified?   If the only “legitimate” reason offered by the hotelier was a dislike of the homosexual individual (and this seems to be the case), wouldn’t Romer seem to indicate that the decision would not pass even the lowest level of scrutiny? 

Second, the “hypothetical” in the previous paragraph is not so theoretical after all. The Human Rights Campaign reports that in 30 of 50 states, an employer can fire a person based solely on his or her sexual orientation.  (The number rises to 38 out of 50 when the subject is gender identity, as opposed to sexual orientation.)  So, even if Mr. Hill were employed by the state of Florida, the exact same thing could have happened to him.  This is a glaring problem in our national jurisprudence.  Sexual orientation is one of the few places where it remains permissible for an employer to engage in blatant discrimination. 

Third, why should equal protection jurisprudence require a state actor?  Yes, I know that the Fourteenth Amendment uses pesky words like “the state” and all of that, but as our society progresses and corporate entities become more powerful than ever, is it still correct to think that the state is the entity with the most power to cause harm? Yes, the state’s discrimination has the force of law behind it, but perhaps it is time to revisit and revise these provisions. 

Finally, as Pandagon notes, this story could be a good thing as it highlights the need for a law such as ENDA (the Employment Non-Discrimination Act) to be passed swiftly.  ENDA is modeled after Title VII.  Assuming that it relies on the same Commerce Clause foundation, it might be fine.  After all, the Court did cite Heart of Atlanta with approval in Lopez, so a favorable decision would not be shocking. But ENDA would be the first major civil rights legislation in the Lopez/Morrison era, so I would be similarly unsurprised if the Court were to adopt a more restrictive view. 


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