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Curt Schilling, Gender-Free Bathrooms and Free Speech For Employees...

Here's your latest dispatch from the world to remind your employees and the ones you love that while they have the right to free speech, it doesn't guarantee they can't be fired...

Curt Schilling, attention hound and baseball commentator on ESPN, was fired last week for comments perceived to be derogatory to transgender people.  I'll let the New York Times break it down for you:

"Schilling, who had worked for the network since 2010 and most recently offered analysis on “Monday Night Baseball,” was dismissed after sharing a Facebook post this week that appeared to respond to the North Carolina law that bars transgender people from using bathrooms and locker rooms that do not correspond with their birth genders.

The post showed an overweight man wearing a wig and women’s clothing with parts of the T-shirt cut out to expose his breasts. It says: “LET HIM IN! to the restroom with your daughter or else you’re a narrow-minded, judgmental, unloving racist bigot who needs to die.”

To that, Schilling added: “A man is a man no matter what they call themselves. I don’t care what they are, who they sleep with, men’s room was designed for the penis, women’s not so much. Now you need laws telling us differently? Pathetic.”

It didn't take long for ESPN to respond:

ESPN is an inclusive company,” ESPN said in a statement. “Curt Schilling has been advised that his conduct was unacceptable and his employment with ESPN has been terminated.” Schilling

At issue here is the disconnect between employment and free speech. A lot of people think that free speech in America means they ought to be able to say anything they want - and as long as their performance is good, their employment should have nothing to do with ideas they share as an individual.

Nothing could be further from the truth. Your broad professional conduct policy likely give you the right to fire anyone you want-if they make statements that make others around them at work uncomfortable.

It's a good reminder to talk openly and honestly during your onboarding or orientation process about what your policies could mean related to free speech.  It probably goes something like this:

"We believe in free speech and will support you exercising those rights as an individual. However, please note that just because you have that right doesn't mean we won't fire you for something you say. Want to know where the line is? Sorry - we can't tell you.  That's where your judgement comes in."

On a personal note, I don't have any transgender friends that I'm aware of.  I find myself in the middle ground of a lot of these issues.  As a pragmatic, practical sort, I can want everyone to feel comfortable with who they are. Then the world gets in the way.  On this single issue, you need look no further than the YMCA locker room.

The average men's YMCA locker room is a freak show. Dudes walking around without towels. Shaving naked.  The type of stuff where most Americans aware of the state of this locker room ponder whether they want a young kid to go in by himself.

And it's this circumstance that makes things complicated in America.   Here's some other thoughts of similar nature from Linda Chavez at the New York Post:

"When I go to the gym, do I have the right to expect I’ll only see other female bodies showering and dressing and that only other biological females will see me doing those things?

If a man is standing at a public urinal, does he have the right to expect that everyone who enters has the same biology?

At my local YMCA, a sign outside the women’s dressing room cautions that boys older than 6 are excluded, and I’ve never seen an adult male take a female child of any age into the men’s dressing room.

A family dressing room is available, which presumably offers privacy for those who can’t meet the parameters. A similar accommodation could be made for transgender individuals, but the LGBT community has rejected this compromise."

Good luck on there on the bathroom issue from an HR standpoint.  I suspect like with many things, we'll allow state laws to guide us on what's acceptable.  This one is complicated.



Serious thoughts there! On a lighter/brighter note, in some countries overseas, many bathrooms are neutral.

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