Conservative Christian heterosexuals need protection too

I was interested to read Larry Merrill’s op-ed piece June 1 in which he touted his friendship with gays, yet warned of the risks of protecting gays from discrimination. He raised the specter of heterosexuals hiring gays just to avoid a lawsuit. Given Larry’s stated profession as a lawyer, the opinion piece had a veneer of authority to it.

It was, of course, only a veneer.

Larry would be the first to tell you that if he had a potential client call him up asking to discuss whether he or she had been the victim of employment discrimination, he would immediately refer the client to me, as he has a handful of clients every year who need someone to potentially litigate a case not within his area of practice. The number of lawyers in Bangor who handle plaintiff’s employment discrimination claims is exceedingly small. The number who actually try such cases on behalf of plaintiffs is even smaller. A statewide meeting of the Maine Employment Lawyers Association barely fills a large conference room. Employment discrimination claims are difficult to pursue and subject to more procedural hurdles than any other type of litigation in the state except, perhaps, medical malpractice claims. The lawyer who takes on such cases gets paid by the job, not by the hour: absent a settlement or a verdict he earns nothing for his time.

For every 10 potential clients who call me seeking assistance, I accept one or two as clients. Thereafter, we must face the hurdle of first filing with the Maine Human Rights Commission and then filing in court no sooner than 180 days later. Most defense lawyers take numerous depositions, some lasting all day, and then seek to have the case dismissed on what is known as a motion for summary judgment. A fair number of cases are resolved against the plaintiff at that stage, leaving only a handful for trial. Proof is, in most cases, circumstantial, as few employers are stupid enough to say: “We’re letting you go because you are a woman, a Native American, a Christian, a whistleblower or a disabled individual (choose your category).”

Absent some compelling evidence that the employer’s stated reason for a discharge is false, I won’t take the case. If the case is a refusal to hire, rather than a discharge, I am even more reluctant to take the case. I have tried seven employment discrimination claims to a jury in the past four years and I am fairly certain that few, if any, plaintiff’s lawyers in Maine have tried more.

There will never be the rash of litigation that Larry Merrill predicts if we protect the rights of homosexuals and heterosexuals to be judged by their ability to do the job, not their choice of mate. Did I say heterosexuals? Of course I did, because the law will protect the heterosexual employee from being fired by the homosexual boss because of the employee’s choice of partner. Will opponents of the bill insist that the latter can’t happen? They point out that homosexuals allegedly earn more than heterosexuals as a reason to vote against the bill. If this is true, isn’t it likely that the supervisor might be gay and the employee straight? Don’t bosses usually earn more than their employees?

Of course the notion that wealth insulates one from prejudice is belied by history. German Jews were allegedly wealthier than their Christian fellow countrymen. That wealth didn’t protect them from the Holocaust.

The final argument Larry Merrill makes is that, the people having narrowly turned down this law twice before, it ought never to be voted on again. Good ideas often involve a long fight before they are accepted. It took half a century of trying before laws outlawing child labor were finally enacted. A Constitution that preserved slavery and the slave trade was not amended to outlaw slavery for more than 78 years; another 99 years passed before the freed slaves were given meaningful protection from Jim Crow-style segregation.

Although there is one argument Larry Merrill doesn’t make, I have read it enough times in the BDN that it deserves a rebuttal: the claim that gays choose to be gay and therefore deserve no protection. The people who most often make this argument have themselves chosen to be conservative Christians and, as such, are protected by the Maine Human Rights Act from employment discrimination. Choice is a red herring, as all religious discrimination is based on the victimized employee’s choice. If gays choose to be gay (a proposition I strongly doubt) how does that lessen their right to equal treatment?

If a fired conservative Christian heterosexual employee comes to me claiming that his sexual orientation or his religion played a role in his termination and I think I can prove it, I will take him on as my client and fight hard for his cause. He is my equal and deserves to be judged by his ability not by his status. I would hope that he would see that the fired homosexual employee is deserving of the same protection.

One hundred and forty-two years ago some courageous Mainers on top of Little Round Top fought for the principle that we are all equal, that no man could own another man, that we looked beyond a person’s skin color and judged him by his deeds. Let us extend that victory to all of our fellow citizens of Maine.

Arthur J. Greif is a Bangor attorney who lives in Hampden.