That seems to be the message that opponents are taking away from Maine’s experience with the addition of sexual orientation to its anti-discrimination law 18 months ago. A story in the Portland Press-Herald reports that, since December 28, 2005, the Maine Human Rights Commission has only received 34 complaints of sexual orientation-based discrimination. This constitutes only 2.5% of the total discrimination claims filed in Maine. Based on these figures, opponents conclude that the law is”an unnecessary measure that combats discrimination that hardly exists.”But before patting themselves on the back too quickly for being so open-minded, opponents might consider some of the alternative explanations for the ostensibly low number of complaints (e.g., that the law serves as a deterrent, that cases may be settled before reaching the complaint stage, or that victims of discrimination may not wish to press their claims for fear of being outed). (And, it is worth noting that the story does a good job of laying out these alternative explanations.)
One thing that the story does not touch on, however, is the possibility that it may be misleading to focus on the raw number of complaints at all. William Rubenstein (of UCLA School of Law’s Williams Institute) did a really interesting piece on this issue a few years back titled Do Gay Rights Laws Matter?: An Empirical Assessment, 75 S. Cal. L. Rev. 65 (2001). Rubenstein’s insight was simple, but illuminating:”If fifty workers file sexual orientation discrimination complaints, it is important to know whether those are fifty workers out of a total of 500 or 500,000 gay workers in the workforce.” Focusing on employment discrimination protections, Rubenstein attempted to determine the percentage of all lesbian and gay workers who filed discrimination complaints and then compare that percentage to the percentage of women in the same workforce who filed gender discrimination complaints and to the percentage of people of color in the same workforce who filed race discrimination complaints. Rubenstein’s research showed that:
Using a low-end estimate of the number of gay people in the workforce, I find that in six of ten surveyed states, the incidence of sexual orientation filings falls somewhere between the incidence of sex and race discrimination filings. In two other states, the prevalence of sexual orientation filings exceeds that of both race and gender. In only two states does the incidence of sexual orientation filings fall below both race and gender filings. Even assuming a high portion of gay people in the workforce, the frequency with which gay workers file claims of sexual orientation discrimination is far closer to the rates at which women file gender discrimination claims and people of color file race discrimination claims than the raw numbers suggest.
It would be interesting to see how Maine’s experience would fare under this approach.
-Anthony C. Infanti
