By JONATHAN SHORMAN
The Topeka Capital-Journal
Gov. Sam Brownback's decision this week to reverse a 2007 executive order protecting gay and lesbian state employees from discrimination provoked outrage, from inside and outside the state -- with some saying workers can now be fired at will because of their sexual orientation or gender identity.
The situation is not that simple, a Washburn University Law professor argues.
Joseph Mastrosimone, an associate professor who focuses on labor and employment law, said despite the order, permanent classified employees remain protected from discharge based on their sexual identity because of Kansas' civil service laws, which prevent non-merit based dismissals.
To be clear, Mastrosimone views Brownback's decision as "shameful" and "troubling." He believes ultimately the governor's reversal on gay and lesbian protections could open up the state to increased litigation.
As Mastrosimone described it: Perception leads to reality. Even employees fired for legitimate reasons can now be more likely to sue.
"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," Mastrosimone said in an op-ed article sent to the Topeka Capital-Journal.
"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."
Mastrosimone also indicated in an interview that non-classified and non-permanent employees are not protected from firing if they are gay, under Brownback's order.
Another effect of the order, Mastrosimone said, is to send the signal to potential gay and lesbian applicants for government jobs that they are not welcomed.
"I suspect you don't send your resume," Mastrosimone said of gays and lesbians considering applying for state jobs after the order. "Why would you?"
Brownback issued a short statement explaining his decision to issue a new executive order rescinding the old one Tuesday.
"This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional 'protected classes' as the previous order did," said Brownback, a Republican.
"Any such expansion of 'protected classes' should be done by the Legislature and not through unilateral action. The order also reaffirms our commitment to hiring, mentoring and recognizing veterans and individuals with disabilities."
The 2007 order was issued by then-Gov. Kathleen Sebelius, a Democrat. Speaking in Lawrence on Thursday, Sebelius said she had first issued the order to ensure state workplaces were inclusive.
Sebelius said she was "totally surprised" by Brownback's decision to rescind the order eight years later and has no idea why he would do it.
In the days since the decision, the state's main universities have issued statements distancing themselves from Brownback's decision and reasserting a commitment to non-discrimination.
Kansas state colleges are governed by the Kansas Board of Regents, and Kansas State University President Kirk Schulz said the university is not required to change its policies. Mirta Martin, Fort Hays State University president, and University of Kansas Chancellor Bernadette Gray-Little also issued similar statements.
"We want to reassure you that (Tuesday's) executive order at the state level does not alter KU's non-discrimination policy. It also does not alter our commitment to an open, inclusive community that is free from fear and discrimination," Gray-Little said.