I love when sports interacts with employment law.
You may have seen yesterday’s announcement that the NBA has pulled the All-Star game from Charlotte North Carolina over a discriminatory law known as House Bill 2, or HB2. That’s an extraordinary move by a pro sports league, which are usually loathe to enter into politics for fear of offending any potential customers.
Much of the focus on HB2 in the media has been on Part I, which prohibits trans-gendered
people from using washrooms that accord with their gender identity. Receiving less attention is Part II of HB2, which is an employment law. I want to focus on this remarkably backward legislation. This part of the North Carolina law reminds me of the battle that ensued in Alberta in the late 1990s when conservative politicians there also resisted extending protection from discrimination in employment to workers based on ‘sexual orientation’.
Part II is titled “Statewide Consistency in Laws Related to Employment and Contracting”. Its purpose is to override moves by 20th century cities in North Carolina to attach working condition requirements to tenders, and–gasp–to prohibit outright discrimination on the basis of ‘sexual orientation’.
HB2 explains the importance of strong anti-discrimination laws applied to the workplace:
It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.
Yes, good. Except that the purpose of HB2 was in fact to restrict and reinforce that these sentiments do not apply to the denial of employment based on sexual orientation. The charging anti-discrimination provision provides:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees.
The state government wanted to make crystal clear in HB2 that in North Carolina employers absolutely can discriminate on the basis of sexual orientation. Apparently, denying employment on the basis of sexual orientation does not cause strife and unrest or deprive the state of qualified workers. Or if it does, the state doesn’t care because protecting the rights of those who would deny employment on the basis of sexual orientation supersedes those interests.
Sexual Orientation Discrimination in Canada
Its amazing that this issue about whether employers should be able to refuse jobs to people based on sexual orientation is still an issue in the US. In Canada, sexual orientation was first added to human rights statutes in Quebec in 1977, then Ontario (1986), Manitoba (1987), Nova Scotia (1991), B.C. (1992), N.B. (1992), Saskatchewan (1993) and the federal government (1996) followed.
Alberta was a close equivalent to North Carolina. It needed the Supreme Court of Canada to force it to add sexual orientation in 1998. In Vriend v. Alberta, an employee was terminated by his private sector employer for being gay. Since the Alberta human rights legislation did not include “sexual orientation”, Vriend could not file a human rights complaint. So he filed a Charter challenge against the government’s failure to protect against sexual orientation discrimination. The Supreme Court ordered Alberta to include ‘sexual orientation’ in its human rights legislation.
Even after the decision, many Alberta conservative politicians, edged on by conservative religious groups, resisted the change. Some wanted to use the “notwithstanding clause” in the Charter to override the SCC decision and thereby protect the right of employers to discriminate on the basis of sexual orientation with impunity. The Premier of Alberta, Ralph Klein, explained the resistance by noting that most Albertans were “severely normal” (see this paper by Timothy Macklem) and did not want to protect gays and lesbians from discrimination in employment.
In the end, the Conservatives did not resort to the ‘notwithstanding clause’ and reluctantly accepted that sexual orientation had been read into the province’s human rights legislation. However, in defiance, the government did not actually get around to amending the human rights legislation to add “sexual orientation” until 2010, some 12 years after Vriend. Since 2012, seven Canadian jurisdictions have also added “gender identity” to the list of prohibited grounds of discrimination, and a few also added “gender expression”.
Issues to Consider
Opponents of laws to protect against discrimination in employment on the basis of sexual orientation often point to religion to explain their justification of discrimination. The argument is that people should not be required to work alongside those who do not live their lives in accordance with their religious values.
Do you believe that an employer should be able to rely on religious freedom as a justification for discriminating against workers based on their sexual orientation?
I deal at length with the prohibited grounds of discrimination in Canadian human rights law in Chapter 27 [The Prohibited Grounds of Discrimination].
In Chapter 20 [The Charter and Regulatory Standards], I examine how changes in social and political values influence the development of legal rules and often cause conflict, using the Vriend decision and Alberta’s reaction to it as an example.