A new lawsuit in Idaho claims the same legal argument that paved the way for gay marriage in the state should also make it illegal to refuse to hire gay people.
Last year, Don Dew applied to be the administrator of the Human Rights Commission, which is part of the Idaho Department of Labor and, in a strange twist, is also the agency in charge of policing discrimination in the state.
He alleges his sexual orientation became an issue in the final round of interviewing and during a reference check.
Idaho does not have a state law prohibiting discrimination based on sexual orientation.
But Dew’s attorney, Ron Coulter, said Dew is protected anyway by the district court decision that declared gay marriage legal in Idaho. In that ruling, the judge said the state had discriminated based on sexual orientation in violation of the 14th Amendment.
"And we said, well if it’s the case in regard to marriage, and if we’re looking at it from a protected class aspect, why wouldn’t it be for employment?" Coulter said. "Why wouldn’t it be for housing? Why wouldn’t it be for anything else, if sexual orientation is the basis for discrimination."
Coulter said this is a new approach in Idaho, a state where gay rights activists have tried for years, unsuccessfully, to enact anti-discrimination laws through the legislature.
Using existing sex discrimination laws to protect gay and lesbian people from employment discrimination is itself a new tactic still being tested in the courts. According to the line of reasoning, it’s a form of gender stereotyping.
“You’re a guy and you’re gay,” Coulter said. “So, you’re dating other guys. Let’s say you’re an effeminate acting male who’s not traditionally male acting. And somebody doesn’t want to hire you. … Well, you’re being discriminated against because of your gender, because you don’t fit the gender stereotype.”
The federal Equal Employment Opportunity Commission has used sex discrimination laws for years in cases involving transgender people. Last fall, the commission signaled it was stepping up efforts to apply the same principle in cases involving gay and lesbian job applicants.
Still, there’s been no consensus in the courts that sex discrimination encompasses discrimination based on sexual orientation. Gay rights advocates argue without clear protections, it’s necessary to adopt laws that explicitly include the terms sexual orientation and gender identity.
Dew filed lawsuits in both state and federal court. He’s asking for $10 million and a declaration by the court that “discrimination in all areas of employment” against gay, lesbian, bisexual and transgender people violates the Equal Protection Clause of the 14th amendment.