Several years ago I wrote a column about the paradox of laws against discrimination in hiring that are themselves discriminatory. It was illegal under civil rights laws to fire someone for being black or a woman or a Mormon, I noted. On the other hand: “Firing, or not hiring, someone because he is overweight, ugly, a ‘Star Wars’ fanatic or a graduate of a non-Ivy League college is not illegal. Yet I have no doubt that members of these groups are the victims of at least occasional discrimination.”
Now we can add another category of employee who is unprotected by civil rights laws: Fans of the TV show “My Little Pony: Friendship Is Magic.” Gawker reported the other day about the dismissal from his job of a man in his 30s known only as “FiredBrony.” A Brony is a fan of the animated series, and, as The Times reported last year, not all Bronies are little girls.
We don’t know FiredBrony’s real name. According to Gawker, he’s a late-30s father of one who attracted the suspicion of his boss when he chose an image of a pony called Applejack as his desktop computer background. Then came Take Your Child to Work Day. As FiredBrony recalls it:
“My boss' daughter is 9 and she comes in wearing a Rainbow Dash shirt. As we were doing introductions, I told her I liked her shirt, something innocent the same way people go ‘those are some cool shoes’ to a kid, nothing weird at all. After the day is done, my boss brings me into his office and confronts me about it, telling me again he thinks it’s weird and to cut it out.”
Eventually, FiredBrony was called in by his boss and told that he was making co-workers uncomfortable and was being let go. Bronies not being a protected class under civil rights laws, FiredBrony had no legal recourse.
The firing evoked this comment from Corey Robin, a blogger and political science professor:
“Most people seem to think that 1st Amendment-ish freedoms — the freedom of not merely speech but of expression, of personal style, etc. — apply in the workplace. They don’t. And while there are a host of protections for protected categories of workers, those constitute a limited number of cases. The vast majority of cases of workplace coercion are simply not covered by federal or state law.... Unless you have a union, which ensures that you can only be fired for just cause, you’re often screwed.”
(Actually, FiredBrony might have had a cause of action in California, but only if he had left his hobby at home. California’s Supreme Court has held that the state Constitution’s privacy protections bind private employers as well as the government, and an employment discrimination attorney told me that fired employees can sue for “interference with private affairs.”)
But back to Robin’s point: With some exceptions, private employers can fire people for irrelevant attributes such as appearance, personal style and preferences in entertainment.
But what’s the remedy? A civil rights act that prohibited firings for any bad reason would exponentially increase the involvement of the government and the courts in the private workplace. That would dilute resources necessary to combat bias that is more entrenched and invidious than distaste for thirtysomething male Bronies.
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