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On Discrimination and "Protected Classes"

Kansas Governor Sam Brownback can't seem to stay away from controversy these days. Following a contentious reelection campaign, and in the midst of a polarizing budget battle, Brownback has issued an executive order allowing discrimination against state employees on the basis of sexual orientation or gender identity. The order rescinds a 2007 order by Brownback's predecessor, Kathleen Sebelius.

Brownback defended his action as a matter of procedural etiquette. "Any such expansion of ‘protected classes’ should be done by the legislature and not through unilateral action," he explained in a statement announcing the order.

Kansas House Democratic Leader Tom Burroughs (D-Kansas City) suggested Brownback's action was an attempt to distract and divide Kansans during the budget fight. "By focusing on divisive social issues, Brownback is playing to his base and attempting to distract from the serious budget crisis facing our state," he said, adding, "The bottom line is this: All Kansans deserve to be treated fairly and with respect and no Kansan should be denied equal protection under the law."

But Representative John Rubin (R-Shawnee) agreed with Brownback's logic. "Until sexual orientation is either added in Kansas as a protected class under our law or added federally, which it isn’t now … I think that’s the Legislature’s prerogative. Whether they should be a protected class is a separate question. … But it isn’t a protected class until we say it is."

That phrase in the middle of Rubin's statement, "whether they should be a protected class," is telling. The issue is not whether a group of people should constitute a "protected class". The issue, as Rep. Burroughs rightly pointed out, is whether any Kansan should be denied equal protection.

The only reason an employer should be allowed to discriminate against employees is job performance. No person should be given the right to keep a job if they can't do the work. But it is counterproductive to allow employers—in this case, state agencies—to fire competent employees for reasons not related to performance. The entire state benefits if no citizens are excluded from jobs based on status rather than ability.

That's why anti-discrimination laws exist, and that's why they sometimes need to be updated. If employers are found to be discriminating against their employees for any reason other than job performance, the quickest way to get them to stop is to prohibit discrimination for that reason. The point is not to create a "protected class" but to recognize discrimination where it exists, and to take action to stop it. The law doesn't mention eye color or hair length, but if employers were ever found to be discriminating for these reasons, they would need to be added.

And such is the case with sexual orientation today. Representative John Carmichael (D-Wichita) has introduced HB 2323 to add sexual orientation and gender identity to the state's anti-discrimination law. If the legislature passes this bill, will Governor Brownback sign it?

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