By every measure, Josh Kronberg-Rasner was a model employee. Bright, personable, a go-getter, Kronberg had filled, at one time or another, every position at the food service company he worked for in Casper, Wyoming from general manager to executive chef. “You name it, I’d done all of it.” The fact that he is openly gay seemed to everyone no more consequential than whether he was right-handed or left.
But in 2012, the company hired a new manager who had, among his many list of personal attributes, a pronounced discomfort working with gay people. So, one day, he went through Kronberg’s personal cell phone and found an image of a male gymnast.
Within a week, Josh was out of a job.
The story is both painful and familiar to the millions of LGBT Americans who live in one of the 29 states, Wyoming among them, where by sheer virtue of your sexual identity, your entire livelihood can come crashing down without warning and perhaps more baleful, without recourse.
But according to KQED, there may be a new avenue for recourse by way of an old law which initially aimed to protect women from being fired over failure to comply with gender stereotypes. Cherie Doak, deputy administrator with Wyoming’s Labor Standards Department, which helps people like Kronberg-Rasner bring claims against employers, explains:
Before Kronberg-Rasner was fired, his former manager discussed the photos he found on Kronberg-Rasner’s phone with a female employee who later told Kronberg-Rasner about it. “The manager said to her, ‘You know, he has this picture of a guy on his phone, and if you, as a woman, had this picture on your phone, it would have been OK. But Josh is a guy, and we can’t have that,’ ” Kronberg-Rasner says. In that conversation, says Doak, the manager “clearly … is objecting to the individual’s nonconformance with gender stereotypes, in that men should only like women, or only have pictures of women on their phone, and only women can have pictures of men on their phone.” The conversation, Doak says, is good evidence of what’s known in court as “gender stereotyping.” That’s the tool that Doak and her counterparts across the country have recently begun using to help LGBT people in states without anti-discrimination laws that include sexual orientation. Doak says the approach works about half the time.
Chris Kuczynski, an attorney with the Federal Equal Employment Opportunity Commission, or EEOC, goes on to say, “[Price Water v. Hopkins] is the case that said that sex discrimination can be shown by evidence of gender stereotyping. I don’t want the impression to be left that we are creating or adding on,” he says. “What we are doing is interpreting the statute consistent with well-established principles.” In that 1989 watershed case, Ann Hopkins successfully sued and won by claiming that her lack of promotions within the company were based on her unwillingness to dress the part – i.e high heels and skirts – that her employers asked of her. The idea that Kronberg-Rasner was expected to have a picture of a female gymnast on his phone and not a male one is exactly the same strategy now being used to help LGBT Americans in similar, albeit different, situations.
Last year, the U.S. Senate did pass the Employment Non-Discrimination Act, which would ban discrimination on the basis of sexual orientation, but the bill is stalled in the House. In the meantime, the EEOC has helped more than 1,200 LGBT people bring employment discrimination claims since 2013.
