Fired for “conduct unbecoming a county employee”

This note of bizarre comes from a New York Times article about a country employee in Georgia being fired for bad conduct. The bad conduct was a male employee joining a gay softball league because doing that, and/or maybe something else constituted “conduct unbecoming a county employee.”

The Supreme Court will take up the case to determine if the Civil Rights Act of 1964 guarantees nationwide protection from workplace discrimination to gay and transgender people. At present, 27  states do not offer any protections. Employers are free to fire all non-heterosexual employees, possibly for no reason other than being non-heterosexual.

Some commentators argue the court will allow the county to fire the employee, while others argue the court will extend civil rights protection to the employee and save his job. The NYT summarizes the two sides legal thinking: “The question for the justices is whether the landmark 1964 law’s prohibition of sex discrimination encompasses discrimination based on sexual orientation or gender identity. Lawyers for the gay and transgender plaintiffs say it does. Lawyers for the defendants and the Trump administration, which has filed briefs supporting the employers, say it does not.”

As usual, the facts are contested. The county claims that the employees’s sexual orientation had nothing to do with his firing. Instead, the county claims he misused county funds.

In a federal appeals court court ruling in a companion case with similar facts, the NYT comments: “Writing for the majority, Chief Judge Robert A. Katzmann concluded that ‘sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.’” It is possible that the Supreme Court’s decision will turn on acceptance or rejection of this legal rationale. That depends on how much evidence the county has to show misuse of funds. If the evidence is strong, the court could ignore the alleged sex discrimination and rule that the employee was fired for misconduct. That is also a plausible outcome, but that would not affect the companion case where the issue would still be central to a decision.