Claiming You Were Discriminated Against Doesn't Make It So

A lot of you readers are emailing me a link to this letter to the editor in the Fargo Forum from a UND law school graduate who claims he was passed over for jobs here in North Dakota because of his sexual orientation and was ultimately forced to move to California. Obviously that’s a provocative claim especially given the controversy surrounding SB2279, an anti-discrimination bill which was voted down by the state House earlier this month.

One problem many people – including this humble blogger – have with legislation like SB2279 is that it seems intent on fixing a problem that doesn’t exist. Proponents of SB2279 like to compare the plight of gays today to that of minorities in the civil rights era, but hyperbole aside there seems to be little evidence that this is the case. In fact, supporters of SB2279 have never been able to provide any truly concrete evidence of discrimination against gays here in North Dakota. Sure, there are anecdotes, but nobody ever seems willing to name who is supposedly doing the discrimination.

In an era where a person can’t visit Facebook or Twitter without seeing someone griping about a business in one way or another, we’re to believe that discrimination against gays for housing and employment and commerce is widespread and routine? C’mon.

Which brings me back to the letter in the Forum. I suspect it’s getting a lot of attention because supporters of SB2279 know that a lack of real-world examples of discrimination is a major hole in their argument. But is this letter, written by one Brent Jaenicke, really credible?

One major problem is that Jaenicke seems to be merely perceiving the discrimination against him:

Honestly, I kept thinking to myself “well, maybe I am not the right fit …” or “they were looking for someone with a different type of experience.” It was about September of last year when I truly realized what was going on. I was being passed over for being an openly gay man. Of course, none of my interviewers ever said anything to that extent. Nor did any of the standard letters sent my way include a pronouncement that I was being passed over because of my sexual orientation. But being passed up for positions that I was clearly qualified for and even in some circumstances being passed over for someone who didn’t even come close to my credentials pointed to one explanation.

Despite my efforts in school and garnering honors (which included being published in the law school’s selective academic journal), the doors were shut. I thought about the modern Republican Party and their mantra about pulling yourself up by your bootstraps with hard work and determination … etc. In my case I pulled myself up by my bootstraps and did everything you are supposed to do as an ambitious and motivated law school student.

In other words, Jaenicke’s only evidence that he suffered discrimination based on his sexual orientation is he didn’t land any of the jobs he wanted in North Dakota fresh out of law school (that may not be entirely true, more in a moment). Was his sexual orientation the problem?

Anything is possible, I suppose, though it’s hard to imagine that happening in the legal industry which isn’t exactly a bastion of social conservatism. Maybe there were just better candidates than Jaenicke for those positions and his sexual orientation had nothing to do with it.

And does Jaenicke know that these potential employers knew anything about his romantic life?

Opponents of SB2279 might point out that this is a major problem with anti-discrimination laws. If you stand accused of discrimination, you must somehow prove that your intent wasn’t to discriminate. And even if the accusations get dismissed, engaging legal counsel to address the complaints still costs time and money.

Another problem with Jaenicke’s letter is that he names no specifics. If he feels strongly that his sexual orientation was an issue for one or all of the employers who rejected his application, why doesn’t he name names?

Perhaps because doing so would require that Jaenicke make good with some facts or face libel charges. Jaenicke may have been afraid that, once he named names, we might find out that the problem wasn’t his sexual orientation after all.

But I’m not sure that Jaenicke is being completely honest about his experiences in North Dakota’s job market. His letter implies that he was forced to move to California to find work, but his LinkedIn profile indicates that began working for a Fargo tech firm in September of 2014, shortly after he graduated from the UND Law School. And while he claims that the “North Dakota legal community lost a very smart, dedicated individual,” his LinkedIn profile shows he worked at a Grand Forks law firm for seven months.

I can sympathize with feelings of anger that some employers might be making hiring decisions based on sexual orientation, but when we’re talking about public policy we need a better sort of justification than vague anecdotes.