One truism unifies law and politics: Perception becomes reality. Smart lawyers and politicians quickly realize that actual facts matter much less than litigants’ or voters’ perceptions of those facts.
Thus, the shameful decision by Gov. Sam Brownback, both a lawyer and a politician, to rescind a long-standing executive order outlawing employment discrimination against executive branch state employees on the basis of sexual orientation or gender identity is particularly troubling.
Brownback’s revocation of the executive order will not change the fact that all permanent classified executive branch employees remain protected from discharge or demotion for “political, religious, racial, or other nonmerit reasons” under Kansas’ civil service laws. Accordingly, the governor’s action fails to do what he suggests it does – equalize the “civil rights” of public- and private-sector employees.
The vast majority of private-sector employees in Kansas are subject to discharge for any lawful reason (or for no reason at all, for that matter) under the employment-at-will doctrine. It would be lawful for a private-sector employer to discharge an employee because of his or her lesbian, gay, bisexual or transgender status because current law does not forbid it.
But state employees are different. Kansas, like most states, has promised its employees that they will lose their jobs only for cause. Brownback’s own unilateral action did not and could not change this. Thus, LGBT permanent employees can still challenge their discharges or demotions as based on a nonmerit reason – their sexual identity.
In this way, the governor’s decision reflects poor public policy and terrible human resources policy. The surest way to invite a lawsuit from a current or soon-to-be-former employee is to leave him with the perception that he was treated unfairly. Rather, if you leave the person with the feeling that he was treated fairly and with respect – even if he disagrees with the decision – he is less likely to sue.
Thus, smart employment lawyers preach “perception becomes reality” to their clients on a daily basis. By this measure, there is nothing smart about the governor’s decision to revoke protections for LGBT employees.
The governor’s stated justification for rescinding the executive order was that it represented “unilateral action” and that the creation of new “protected classes” should be done by the Legislature and not the executive. Even if true, that will not matter. With the swipe of a pen, Brownback has created the perception that Kansas is hostile to LGBT citizens. It is this perception that will create the new reality. Thus, even if such an employee is discharged for entirely justifiable reasons, the governor’s action will have created the perception that it was for a discriminatory one.
As a result of the governor’s revocation, we can anticipate an increase in litigation whenever an LGBT state employee is demoted, disciplined or discharged. By leaving in place the right to sue but increasing the likely perception that the adverse action was a result of prejudice and discrimination, Brownback’s action is both shameful and irrational.
There are certainly more noble reasons to criticize Brownback’s decision. It strikes a discordant note in today’s “new music” of inclusion and nondiscrimination. Many Kansans are ashamed of this policy. They know it is an irrational decision that robs us all of who we know we are as Kansans and of the talent and the funds needed to serve our citizens.
One could hope that the governor would reverse course or that the Legislature will provide these protections for all Kansans. Sadly, that may be too much to hope for.
Joseph Mastrosimone is an associate professor of law at Washburn University School of Law in Topeka. He previously served as chief legal counsel for the Kansas Human Rights Commission.