Box Turtle Bulletin

Today In History, 1979: Gay Law Students Challenge Pacific Telephone’s Hiring Practices — and Win

The very idea that LGBT people should require specific protections from the more covert forms employment discrimination was still pretty far out there. In the 1970s, the more present battle was to deal with the explicit, written policies prohibiting employment for gay people. In 1975, the U.S. Civil Service Commission finally abandoned its regulations barring gay people from federal employment (Jul 3), and that only came about after more than a decade of persistent pressure from East Coast gay rights advocates. For a bunch of law school students to lead the charge against the behemoth Pacific Telephone and Telegraph, California’s massive telephone monopoly, must have seemed foolhardy, at best.

PT&T, one of California’s largest employers, was notoriously anti-gay, with an explicit company policy that prohibited gay employees among their ranks. The company refused to hire anyone who they knew was gay, and they fired anyone who came out as “manifest homosexuals.” Some of those former PT&T employees took their problem to the San Francisco-based Society for Individual Rights (SIR). SIR joined forces with the Gay Law Students Association, composed of students at Hastings College of Law and the Boalt Hall Law School, and together they decided to develop the case.

SIR needed standing to sue though. So SIR encouraged qualified members to apply for PT&T jobs. When every one of them were turned away, SIR could go to court and argue that their members were harmed by PT&T’s policies. The Gay Law Students Association cited SIR’s experience, and said that as future lawyers who would be interested in working with PT&Tl after graduation, they too were harmed. Together with plaintiffs who were fired or forced out of their jobs, the class action represented the past, present harms, as well as the anticipated future harms of PT&T hiring practices.

In1974, GLSA and SIR first took their complaint to the state’s Fair Employment Practices Commission. But the FECP said it didn’t have jurisdiction in this case because the California Fair Employment Act (FEPA) didn’t include sexual orientation in Commission’s non-discrimination mandate. GLSA and SIR then took their case to court, seeking to compel the FECP to act on their complaint, and to compel PT&T to drop its anti-gay employment practices. The FECP repeated their claim that lacked jurisdiction, and PT&T, rather defiantly, said simply that under California law, they were allowed to discriminate against gay people and they saw no need to change or defend their policy. The Superior Court judge agreed with the FECP and PT&T, and dismissed the case. The California Court of Appeal upheld his decision.

The case then went to the California Supreme Court in 1977. It took the court almost exactly two years to issue its ruling. And when it did, it was mostly a narrow one, based on the fact that PT&T was a state-regulated and protected public utility, “more akin to a government entity than to a purely private employer.” That meant that PT&T, like the state government itself, was bound by the state Constitution’s Equal Protection clause. If the state’s Equal Protection clause prohibited the state government from arbitrary employment practices, then PT&T, as a state-regulated monopoly, also had to follow the same mandate the sate was required to follow.

But the Court wasn’t finished yet. It also found that PT&T’s employment practices went against the Public Utilities Code, which prohibited public utilities from “subject(ing) any corporation or person to any prejudice or disadvantage.” PT&T argued that the clause applied only to rates or services. But the Supreme Court pointed to the phrase “in any other respect” and ruled that PT&T’s employment practices were also covered by the statute.

And the Court still wasn’t done. And here’s where the Court’s ruling expanded its impact beyond public utilities and into the realm of all business employment practices, public or private (although this point was little-noticed by the news media at the time). The Court ruled that PT&T was guilty of interfering with plaintiffs’ political freedoms in violation of the California Labor Code. That code prohibited employers from taking any action “forbidding or preventing employees from engaging or participating in politics.” And the Court found that the very act of coming out of the closet was a political activity:

A principal barrier to homosexual equality is the common feeling that homosexuality is an affliction which the homosexual worker must conceal from his employer and his fellow workers. Consequently one important aspect of the struggle for equal rights is to induce homosexual individuals to “come out of the closet,” acknowledge their sexual preferences, and to associate with others in working for equal rights.

In light of this factor in the movement for homosexual rights, the allegations of plaintiffs’ complaint assume a special significance. Plaintiffs allege that PT&T discriminates against “manifest” homosexuals and against persons who make “an issue of their homosexuality.” The complaint asserts also that PT&T will not hire anyone referred to them by plaintiff Society for Individual Rights, an organization active in promoting the rights of homosexuals to equal employment opportunities. These allegations can reasonably be construed as charging that PT&T discriminates in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations.

That third point was new. Before, courts generally saw that not as a political act, but as “flaunting,” which had long been used to justify firing gay employees. Now California’s highest court said it was a protected political act that applied to all employers in California, public or private.

Unfortunately, the Court agreed with the Fair Employment Practices Commission that the California Fair Employment Act didn’t cover sexual orientation. Which meant that the FEPC was right to deny the gay organizations’ claim. So while that third point was an important ruling that applied to all employers and not just public utilities, it also meant that if a gay man or lesbian had been discriminated against, the only recourse was to hire a lawyer and go to court, rather than  the much less expensive route of filing a complaint with the FEPC. But it was a start. Gay Californians wouldn’t gain full employment discrimination protections until 1992.