One truism unifies law and politics: Perception becomes reality. Smart lawyers and politicians quickly realize that actual facts matter much less than litigants' or voters' perceptions of those facts. Thus, the shameful decision by Kansas Governor Sam Brownback, both a lawyer and a politician, to rescind a longstanding executive order outlawing employment discrimination against executive branch state employees on the basis of sexual orientation or gender identity is particularly troubling.
Governor Brownback's revocation of the executive order will not change the fact that all permanent classified executive branch employees remain protected from discharge or demotion for "political, religious, racial, or other nonmerit reasons" under Kansas's civil service laws. Accordingly, the Governor's action fails to do what he suggests it does -- equalize the "civil rights" of public and private sector employees. The vast majority of private sector employees in Kansas are subject to discharge for any lawful reason (or for no reason at all for that matter) under the employment-at-will doctrine. It would be lawful for a private sector employer to discharge an employee because of his or her LGBT status because current law does not forbid it. But state employees are different. Kansas, like most states, has promised its employees that they will lose their jobs only for cause. Governor Brownback's own unilateral action did not and could not change this. Thus, gay, lesbian and transgender permanent employees can still challenge their discharges or demotions as based on a nonmerit reason -- their sexual identity.
In this way, the Governor's decision reflects poor public policy and terrible human resources policy. The surest way to invite a lawsuit from a current or soon-to-be former employee is to leave him with the perception that he was treated unfairly. Rather, if you leave the person with the feeling that he was treated fairly and with respect -- even if he disagrees with the decision -- he is less likely to sue. Thus, smart employment lawyers preach "perception becomes reality" to their clients on a daily basis. By this measure, there is nothing smart about the Governor's decision to revoke protections for gay, lesbian and transgendered employees.
The Governor's stated justification for rescinding the executive order -- it represented "unilateral action" and the creation of new "protected classes" should be done by the legislature and not the executive -- even if true, will not matter. With the swipe of a pen, Governor Brownback has created the perception that Kansas is hostile to gay, lesbian and transgendered citizens. It is this perception that will create the new reality. Thus, even if such an employee is discharged for entirely justifiable reasons, the Governor's action will have created the perception that it was for a discriminatory one.
As a result of the Governor's revocation, we can anticipate an increase in litigation whenever a LGBT state employee is demoted, disciplined, or discharged. By leaving in place the right to sue but increasing the likely perception that the adverse action was a result of prejudice and discrimination, Governor Brownback's action is both shameful and irrational. Certainly employees who are in fact discriminated against because of their sexual identity will have civil service claims. Yet, even those who are disciplined or demoted for legitimate reasons will now be more likely to sue the state. The Governor's removal of the protections from discrimination leaves state employees with the perception that it is "open season" on gay, lesbian and transgendered employees. That the good people who actually labor in state agencies to serve the people of Kansas are far too good natured to boorishly discharge an employee because of his or her sexual orientation or gender identity will not matter. The perception created by the needless revocation of rights will become reality. And, that reality will generate more conflict and litigation for the state to resolve and defend. Given that each month the state falls further and further behind in the resources needed to serve its people, needlessly placing new strains on state resources is simply mindboggling.
There are certainly more noble reasons to criticize Governor Brownback's decision. It strikes a discordant note in today's "new music" of inclusion and nondiscrimination. Many Kansans, regardless of whom it is that nature has taught them to love or to be, are ashamed today of this policy. They know it is an irrational decision that robs us all of who we know we are as Kansans and of the talent and the funds needed to serve our citizens. One could hope that the Governor would reverse course or that the Legislature will provide these protections for all Kansans. Sadly, that may be too much to hope for.
Mr. Mastrosimone is an Associate Professor of Law at Washburn University School of Law in Topeka, Kansas. He teaches labor law, employment law, and legal research and writing in Washburn's often nationally ranked legal research and writing program. Prior to teaching, he was the Chief Legal Counsel for the Kansas Human Rights Commission and represented management in labor and employment disputes at two national law firms.