Why, exactly, does PolitiFact exist?

Martina Navratilova is usually considered the greatest women’s tennis player of all time, but couldn’t you make a pretty strong argument that she’s the greatest tennis player of all time, period? She won more Grand Slam titles than anybody, career Grand Slams (winning each of the Australian Open, the French Open, Wimbledon, and the US Open at least once in your career) in singles, doubles, and mixed doubles, just a staggering number of major titles. If an in-her-prime Navratilova got on the court against an in-his-prime Federer, who would win? Don’t ask me, I’m lucky I can hit those damn balls over the net once. But if you evaluate athletes based on how they perform against their peers, and not in hypothetical matches against non-peers, Navratilova has to be right up there with Margaret Court, who won even more major titles and also excelled in both singles and doubles, as far as being the greatest tennis players of all time, forget gender.

Anyway, this isn’t about tennis. “Then why the he–,” you start to ask. My answer is, I have no idea. Just go with it.

One thing I doubt anybody will ever say is that PolitiFact.com, the Tampa Bay Times’ project to compartmentalize and ruin actual journalism by renaming it “fact-checking” and then doing a half-assed job at it, is the greatest of all time at anything, tennis or otherwise (there, I managed to tie this all together). Navratilova, who came out way back in 1981, has been doing some TV rounds in the wake of Jason Collins becoming the first openly gay, active player in any of the four major North American sports leagues (NFL, NBA, MLB, and NHL). Navratilova was on “Face the Nation,” which given that it’s a Sunday talk show is notable because it actually was Navratilova and not John McCain in a mask, and said this:

The times have changed. I think when President Obama came and – in favor of gay rights, a gay marriage, that really changed the tide. But we have to remember that this is – this has been a long time coming. We still don’t have equal rights, I have been getting on Twitter, ‘oh, why does this matter? I don’t care,’ which is kind of code for ‘I really don’t want to know,’ but it does matter because in 29 states in this country you can still get fired for not just being gay but if your employer thinks that you’re gay, you can still get fired. We don’t have equal rights.

Given this bold and shocking claim fairly benign recitation of fact to work with, PolitiFact.com did what they do best: fire up the research team and shoot themselves in the foot into action. Can you be fired by your employer in 29 states just for being gay or being suspected of being gay? In classic PolitiFact fashion, they determined that the answer was “yes,” but that the statement was only “Half-True” because some other things that Navratilova didn’t say anything about are also true:

According to the Human Rights Campaign, a gay-rights group, 21 states plus the District of Columbia explicitly prohibit employment discrimination based on sexual orientation. The remaining 29 do not. (This map shows the legal situation by state.)

See? So the real fact, the only one Navratilova talked about, has been checked and found to be true. But if you think that’s the end of the story, don’t apply for a job with PolitiFact anytime soon.

But while Navratilova gets the number right, our discussions with legal experts produced a few exceptions to the rule:

Oh, boy.

Government employees in those states have protections. Government workers are covered by the equal protection clause of the 14th Amendment to the U.S. Constitution. A public employee can establish a violation if they can show they were subjected to adverse treatment when compared with other similarly situated employees, and that the treatment was motivated by an intention to discriminate on the basis of improper considerations, according to Lambda Legal Defense, a legal organization focused on challenging discrimination against lesbian, gay, bisexual, and transgender individuals. Courts have backed the idea that sexual orientation is one of the categories that would permit such a lawsuit.

In addition, nine other states — beyond the 21 that currently ban discrimination based on sexual orientation — have an executive order, administrative order or personnel regulation that prohibits such discrimination against public employees, according to the Human Rights Campaign.

OK, but she didn’t say that in 29 states pubic employees can be fired for being gay, she didn’t say that everybody who is or seems to be gay in those states will be fired, she said that in 29 states it’s legal to fire somebody for being gay or seeming gay. The fact that one particular group of workers has some protection against this does not make her statement less true.

Localities may have an anti-discrimination law even if their state does not. To give just one example, Pennsylvania has no statewide law, but many of its cities do, from Philadelphia and Pittsburgh all the way down to Jenkintown and Susquehanna Township, according to the Pennsylvania Diversity Network. According to the group, 12 of the 15 most populous cities in the Keystone State have anti-discrimination laws that cover sexual orientation, meaning a sizable percentage of employees in the state are covered even without a state law.

This is even dumber than the first point. That you can’t be fired in Pittsburgh because your boss thinks you might be gay does not mean that the Commonwealth of Pennsylvania offers statewide legal protections against this kind of discrimination. I get the feeling that PolitiFact would say that the statement “influenza can be fatal” is “Half-True” because lots of people get flu shots. Specific protections for specific people in specific localities do not make a statement about the lack of statewide protection any less true.

Individual employers may have policies that bar discrimination based on sexual orientation, even if their state or city does not. “Some employers, through union agreements, company handbooks or other contracts, may have explicitly or implicitly promised to refrain from certain kinds of discrimination, and these provisions, depending on the particulars, might protect some employees against irrational discrimination of this kind,” said Vik Amar, a law professor at the University of California at Davis.

I think we’ve reached the epicenter of dumb. It’s only half-true to say that Pennsylvania doesn’t bar discrimination based on sexual orientation because some companies in Pennsylvania voluntarily bar that kind of discrimination. Do the people at PolitiFact ever read what they write and, if so, do they actually take themselves seriously?

Title VII of the Civil Rights Act provides protection for employees who are subjected to gender-based stereotyping. This is relevant because Navratilova said you could get fired “if your employer thinks you are gay” — not just if you are actually gay. While the Civil Rights Act currently protects only sex discrimination and not discrimination based on sexual orientation, gender-based stereotyping can include elements that overlap significantly with an employer “think(ing) you are gay.”

Hayley Gorenberg, deputy legal director of Lambda Legal, cited the 1989 Supreme Court case Price Waterhouse vs. Hopkins. In that case, a woman sued the accounting firm where she worked because she was not offered a promotion after a senior manager told her she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The plaintiff convinced the court that sex stereotyping constitutes sex discrimination, Gorenberg said. This precedent could protect a straight person who appeared to an employer to be “gay” and suffered discrimination as a result.

I was wrong, we’ve drilled down to a deeper layer of dumb. Navratilova is only being half-true because some court decision about another thing could possibly be interpreted in a way that might make it applicable as a precedent to protect one of the two groups of people (people who are gay and people who seem to be gay) that Navratilova was talking about. Now that is dumb.

The weird thing is, PolitiFact is simultaneously making their work harder and dumber. If you just evaluated the simple statement of fact that Navratilova offered, and checked it against state laws around the country, you’d find that what she said is true, end of discussion, move on to the next fact in need of checking. But in order to seem…well, I don’t know what they’re trying to seem, but they went to a lot of effort to bend and twist reality, and Navratilova’s statement, into some bizarre pretzel so that they could then claim that the pretzel was only half-true. Why? If the “fact-checking” PolitiFact isn’t going to stick to checking facts, why does it exist at all?



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