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Some small businesses can’t get past their own prejudice. Let them fold

By July 3, 2020July 11th, 2020No Comments

(This post originally appeared on The Guardian)

A guy in Georgia was fired from his job because he started playing in a gay softball league. Another guy in New York State was fired for mentioning he was gay. A trans woman who worked for a funeral home in Michigan was fired when she presented herself as a woman. These are true stories and, yes, this still goes on in 2020.

Even before the pandemic, small business owners like myself worried every day about collecting money, responding to customer issues, keeping up with the competition, motivating our workers, and balancing the stresses of our work and our family lives. And yet, some of these same business owners actually have the time to spend to come up with ways to fire an employee because of his or her sexual orientation or identity? Wow. To me, that’s amazing.

But sadly maybe not so amazing. In fact, as recently as 2016, a report from the Center for American Progress found that between 11% and 28% of LGBTQ workers said they lost a promotion simply because of their sexual orientation. And although some states had laws on the books to prevent against this kind of thing many states didn’t and these kinds of discriminatory practices frequently occurred. But thanks to a recent supreme court ruling, you can’t do that kind of stuff any more if you’re a small business, regardless of where you’re located. If you do, then you’re now violating federal law.

“It’s a really big deal because before this, there certainly were employers who believed that they could just end the employment of somebody for being gay or transgender,” said Jennifer Levi, director of the Transgender Rights Project at the Gay & Lesbian Advocates & Defenders told USA Today. “So this is really an important clarification of the scope of federal law.”

Of course, this is very good news for the LGBTQ community. But some are concerned that the ruling doesn’t go far enough. It still excludes small businesses that employ fewer than 15 people. Which means that – depending on the state you’re in – you can still fire someone if you’re under that employee level and you have a problem with that person’s sexual identity.

The exclusion for smaller companies was “one of several subtleties that got lost in the headlines given the significance of the decision, which is certainly a landmark”, Jon Nadler, a Philadelphia-based lawyer who represents businesses in employment litigation told Crain’s Detroit Business. “The decision interprets only this one statute and did not interpret the US constitution or anything else.”

Regardless of the exclusion for firms with less than 15 employees, some opponents of the ruling feel that small businesses will still suffer because of it.

Alex Swoyer, a writer for the Washington Times, fears that the ruling will ultimately “inundate” small businesses with new lawsuits. “The decision threatens to hit some small businesses with litigation in an area that they haven’t had to deal with until now,” she reports.

Swoyer says that larger companies are already mostly in compliance with these anti-discrimination practices nationally and have the resources to fight any potential claim. But small businesses, even the ones with more than 15 employees and particularly those in the 17 states with no protection at any level (which includes Texas, Florida, Louisiana and Mississippi) are still exposed.

Swoyer’s right. It’s very possible that some small businesses will face lawsuits because of the ruling. Let’s hope so. Why? Because it’ll be a lesson. Not in morality or ethics. But in business. This ruling not only benefits LGBTQ workers. It benefits their employers too.

The ones that realize the benefits of this law will ultimately stop worrying about an employee’s sexual orientation and instead pay more attention to that person’s skills and job performance. They won’t be tempted to fire someone because of an ignorant prejudice and instead be motivated to find ways to make that employee do a better job … and in turn generate more profits.

Replacing employees in a small business is disruptive and very expensive. Obsessing over someone’s sexual orientation and then having to defend it in court is costly, time-consuming and unproductive. This ruling makes it harder to do so, and that ultimately is in the best interest of the business owner.

Of course, there will be always be some employers who doesn’t get it, who still live in the past and who can’t get past their own prejudices. Like the dinosaurs of the past, they will ultimately disappear, to be replaced by smarter entrepreneurs who understand that discrimination is not just a moral issue, it’s just bad for business.

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