Gov. Pete Wilson’s veto of Assembly Bill 101, the gay equal employment opportunity bill, produced many losers. It was a stinging defeat for lesbians and gays who have long campaigned for the same anti-discrimination laws that protect other Californians. Wilson, too, lost credibility by acting politically on an issue of principle. Now, because of a recent state appellate court decision broadly prohibiting job bias on the basis of sexual orientation, California businesses must operate under a more onerous legal standard than AB 101’s balanced approach.
It’s time for new legislation that erases the sting and creates winners all around.
The court decision, Soroka vs. Dayton Hudson, interpreted certain state labor code provisions to “prohibit all employers from discriminating against an employee on the basis of his or her sexual orientation.” This is significant because the labor code does not exempt small businesses or religious entities. It imposes criminal as well as civil penalties for violations. In contrast, AB 101 exempted businesses with fewer than five employees, roughly 60% of California enterprises. It fully exempted religious employers and imposed no criminal penalties.
To its credit, the Wilson Administration has adopted the Soroka ruling. The state Department of Industrial Relations now accepts and investigates sexual orientation discrimination complaints. In so doing, Wilson apparently is willing to impose the very burden on the business community, especially small businesses, which he said he was trying to avoid with his veto.
This is an opportune time for a new legislative initiative. The proposal is simple: make into law the labor code prohibition on job discrimination against gays and lesbians that was adopted by the court in Soroka, with the AB 101 exemptions.
This idea has many virtues. It secures the prohibition, making it safe from future judicial reinterpretation. It relieves businesses of added burdens. Small businesses would not have to defend costly discrimination claims. This is consistent with existing law barring job discrimination against racial minorities and women, which also exempts small businesses. Genuine nonprofit religious employers would not be forced to hire individuals against their will.
Wilson could sign the bill from a position of strength. A law codifying Soroka is a different legislative approach than AB 101. More important, the governor’s veto message argued that AB 101 was unnecessary because the labor code already prohibited discrimination on the basis of sexual orientation. At the time of the veto, no court had so interpreted the labor code, but Wilson could correctly contend that his prophetic view of the law prevailed.
Above all, gays and lesbians would at long last achieve basic protection from bigotry on the job. This alternative is just as strong as AB 101, offering effective remedies to gays who encounter job discrimination every year in California.
According to all polls on the issue, a majority of Californians support such a law. It is a matter of fundamental fairness: An individual’s opportunity to have and keep a job should be based on qualifications and performance, not private, lawful behavior.
This sensible legislative compromise is the best chance in a decade to enact a gay job-rights law. All of the alternatives suffer huge handicaps. Hoping for tougher legislation in the future could run up against the loss of a Democratic majority in this year’s reapportionment. Street marches vent anger, but they alienate public support. And it is unthinkable to surrender to the religious extremists and hate groups that oppose any effort to prohibit job discrimination against gays.
Mainstream California can unite and put this nasty issue behind it. A legislative compromise that protects gays, preserves business interests and validates Gov. Wilson is the best way to do so.