When is blatant harassment not covered under nondiscrimination laws?

Jeff Taylor

Just how strong are nondiscrimination laws? According to a new report from the Human Rights Campaign Foundation, not quite as strong as you might think. The laws have a potential loophole that would allow discrimination go go unpunished.

At issue is the concept of “actual or perceived” characteristics. The report cites the case of a FedEx employee who was repeated harassed for being Mexican-American, even though he was not. The man eventually sued, but had his case dismissed by a federal court because his harassers suffered from “misperception,” even though the harassment was real and damaging.

In short, you can be harassed in the workplace because someone thinks you are gay or transgender, but if you are bisexual or cisgender, you could lose your case.

Some nondiscrimination laws include language about “actual or perceived” characteristics, but not all of them do. Many are based on federal laws, which do not include such language.

“These court-created ‘misperception’ loopholes seriously undermine strong employment non-discrimination laws that are essential to ensuring productive and inclusive workplaces,” said HRC Associate Legal Director Robin Maril, one of the authors of the report.

Of course, the bigger issue is that a lot of places in the U.S. don’t offer any protections, even with potential loopholes. HRC is using the report to push for the passage of the Equality Act, which would protect LGBTQ people under current federal nondiscrimination law.

The measure has a snowball’s chance in hell of passing anytime soon. In fact, Republican-controlled state legislatures have been looking for ways to overturn existing municipal protections.

North Carolina’s HB2 is best known for banning transgender people from using bathrooms of the gender with which they identify. However, the bill also nullified existing local nondiscrimination protections.

With President Trump loading the federal bench with ultraconservative judges, nondiscrimination laws may be subject to new efforts to erode the protections they offer. Religious liberty bills may finish the job, creating giant loopholes for conservative Christians to discriminate.

It all goes to prove that progress can be much more fleeting than you think.

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