The Jian Ghomeshi case echoes many kinksters’ worst fears: being outed and fired.

Yes, You Can Be Fired for Being Kinky

Yes, You Can Be Fired for Being Kinky

Outward
Expanding the LGBTQ Conversation
Oct. 28 2014 1:45 PM

Can You Really Be Fired for Being Kinky? Absolutely.

96001996-jian-ghomeshi-inside-the-studio-at-the-canada-for-haiti
Jian Ghomeshi claims he was fired because of his BDSM orientation.

Photo by Malcolm Taylor/Getty Images

This weekend, the Canadian Broadcasting Corporation sparked a national sex conversation when it dismissed popular radio host Jian Ghomeshi. In a Facebook post, Ghomeshi claimed he was fired because his participation in consensual BDSM had come to light and corporation executives “said that this type of sexual behavior was unbecoming of a prominent host on the CBC.” A few hours later, the Toronto Star published an article suggesting that Ghomeshi was let go because he had a history of assaulting women—not for consensual kink.* As Amanda Marcotte noted in Slate, “Accusations of dating violence, sexual abuse, and sexual harassment, if true, are all good reasons for the CBC to terminate its relationship with Ghomeshi. … The only issue that matters … is whether or not there was consent.”

Even if you don’t believe Ghomeshi is a victim here, it’s worth recognizing that he articulated one of the biggest fears in the BDSM community: the possibility of being exposed and fired for our consensual (but stigmatized) sexual practices is a very real concern for many kinky people. In 2008, a Canadian man claimed that he was denied a chauffeur’s permit because of his involvement in BDSM. (In Canada, even unquestionably consensual BDSM falls into a legal gray area; its Supreme Court has ruled that adults cannot consent to bodily harm. Meanwhile, Canada fiercely protects the “right” of parents to inflict a non-consensual act of BDSM on their kids, but I won’t rant about that again.) In the United States, a U.N. weapons inspector was pressured to resign after a Washington Post article outed him as a participant in a BDSM organization. And in Britain, a woman was dismissed from her job after she wore a silver BDSM collar to work—an item, she claimed, that was a token of her beliefs and therefore comparable to religious jewelry.

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These high-profile cases are a taste of what less-visible kinksters fear could happen to them. In the United States, it’s perfectly legal for an employer to dismiss an employee because he or she participates in private BDSM, even when the practice has no effect on their job performance. Many employment contracts have so-called “morality clauses,” which stipulate that an employee can be fired for participating in leisure time activities that are “immoral,” distasteful, or stigmatized. But even without morality clauses, kinksters worry.

“For a lot of us, it wouldn’t take a morality clause to lose a job for being kinky,” said a young academic who fears that if his sexual identity were exposed, he’d be excluded from tenure-track positions. “I definitely worry about sharing my kink with vanilla [i.e., non-kinky] significant others, because if a relationship ever ended badly, there would be nothing to stop someone from outing me.”

Dan Kozma, a D.C.-based attorney who specializes in employment discrimination law, told me that there are only four instances where employees are protected from unfair termination: if the employee is covered by a collective bargaining agreement, such as a union contract, which requires “just cause” for termination; if the employee has an individual contract of employment for a specific period of time; if an employee has refused an order to break the law; or if the employee falls into a category that is protected on the basis of race, sex, religion, national origin, or disability status. But none of those exceptions protects employees from being fired merely because a supervisor finds his or her consensual, private sexual behavior to be distasteful.

“If you’re terminated for kink in the United States, I don’t know of anything that will protect you,” said Kozma.

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Susan Wright, the spokeswoman for the National Coalition for Sexual Freedom, said that union membership sometimes protects kinksters, polyamorous people, swingers, and other sexual minorities from losing their jobs. But in some industries, such as education and health care, even union membership can’t guarantee job security.

“If you’re a teacher, forget it,” said Wright. “It doesn’t matter if you’re in a union. If you’re kinky, and someone exposes you, you’re out.” (Although there must be some kinky teachers who have been outed to sympathetic colleagues and kept their jobs, kinksters who work in education tend to be some of the most conscious about keeping their private lives hidden. One submissive male teacher told me that he and his wife are extra careful to ensure that any marks left on him by their sex play won’t be visible at work.)

Stigma and the associated fears of employment discrimination prevent most kinky people from publicly discussing this issue. But anecdotes from a NCSF survey that documented kinky people’s experiences, including those in the workplace, highlight the situations kinksters fear.

“The new manager ... cornered [my husband] in private and told him he was a ‘sick fuck’ and in need of serious psychiatric counseling,” wrote one respondent. Another indicated that after a manager “was told I was active in the BDSM community, he called an emergency meeting with middle management to discuss my termination.” One person lost business after she outed herself by appearing as a witness in a criminal case. Another believed he or she was terminated because the job trainer was himself a member of the BDSM community and was afraid of being outed.

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“This constant threat of loss of career and livelihood has impacted me in countless negative ways,” wrote one person, who identified himself as a retired member of the U.S. Air Force. “I do not understand why we are considered such a threat."

To protect themselves, most kinky people keep their private lives private. But that is often easier said than done. Kinksters have found that even one private disclosure, made in confidence to a friendly colleague, can devastate a career. Only a few months ago, Wright told me, a man was fired from his job with a religious organization explicitly because a former friend disclosed his participation in consensual BDSM to the church hierarchy. “This happens a lot—friends get angry at each other, and then they use the stigma to out the other person,” said Wright. “We’re just another in the long list of groups that are discriminated against because of who we are.”

Sexual orientation is not a protected category under federal law. (And even if it were, the question of whether kink qualifies as a sexual orientation is hotly debated.) But employment-discrimination attorney Kozma says that in states that have anti-discrimination laws to protect people on the basis of sexual orientation, those protections can sometimes extend to kinksters.

“If you can argue that an anti-kink termination was discrimination on the basis of sexual orientation, you might have a chance,” said Kozma. When one of his clients believed that she’d been terminated on the basis of her kink, Kozma was able to negotiate a settlement after they framed the case as a sexual orientation issue. But other cases, particularly in states with no anti-discrimination protections for sexual orientation, don’t end so well.

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“Another woman was terminated because in her off-duty hours, she was working as a pro domme [a woman who professionally takes on the dominant role with submissive clients in BDSM practice],” said Kozma. “It came to the attention of her employers, and they terminated her. There was nothing I could do to help.” According to Kozma, the woman in that case believed that another pro domme had outed her to management in hopes that they would force her to leave her side job and therby eliminate a competitor.

Even when kinksters do everything they can to protect their jobs by keeping their sex lives discreet, there are no guarantees. Suzanne B. Goldberg, the director of the Center for Gender and Sexuality Law at Columbia University, pointed out that Internet platforms like FetLife.com, which help otherwise isolated kinksters connect with like-minded people, also make them more vulnerable to public exposure. And when kinky people are exposed, we have no reason to believe the law will protect us.

“Historically, many employers felt very comfortable firing gay people because of their sex practices, and the law has come a very long way in that regard,” Goldberg told me. “Today, employers that can no longer freely fire gay people can still feel comfortable firing someone for participating in BDSM. The question is, what bearing does this have on someone’s capacity to do his or her job?”

* Correction, Oct. 29, 2014: This post originally misstated that a story in the Toronto Star alleged that Jian Ghomeshi was fired because of his treatment of women. The Star didn't explicitly make this allegation in its story.