As hearings continue at the State Capitol on bills that include language that would make sexual orientation and gender identity a protected class, business groups such as AIM continue to point out the pitfalls of the legislation.
This week at a hearing in a House committee for HB 407, sponsored by Rep. Stephen Webber, (D-Columbia), AIM president Ray McCarty was careful to outline the association’s objections to bills such as HB 407 that give workers fired for cause another avenue for filing suit against employers.
“We encourage employers to have policies in place that prevent discrimination of any kind,” said McCarty during an interview after his testimony. “And we applaud those employers that have taken steps to broaden their policies to include other categories of people.”
But McCarty points out that extending blanket protected status to gender identity can be tricky for employers. As an example, consider the case of an employee with a poor record who knows they are about to be fired. If this bill becomes law, they could demand to use the opposite sex restroom because they are in a “transition” phase. If the employer refuses and fires the employee, the employer could be found to have discriminated against the employee because of his or her “gender identity.”
“That’s a very dangerous part of establishing these types of protected classes,” said McCarty. “What sets it apart from other protected classes such as race and age is the ability to claim you are a member of the class without any verifiable proof.”
McCarty points out that federal discrimination laws do not make gender identity or sexual orientation protected classes. McCarty says businesses should be free to enact policies as they see fit, but laws allowing lawsuits are not the answer.
“Companies that have policies can regulate those policies within their employment practices,” said McCarty. “But when we want to put it into law, that’s a different discussion. That’s why we oppose bills such as Rep. Webber’s.”
The fate of House Bill 407 is still up in the air at best, but other forms of gender identity legislation are still in play in this legislative session. Lawmakers have the ability to put the non-discrimination language into any of several pieces of still-moving legislation.