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This question is inspired by the following question over on Academia.SE: Should students' nonhuman identity be taken seriously in classroom settings?

The U.S. Equal Employment Opportunity Commission notes:

In Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020),[1] the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex.

Individuals who identify as non-human animals report sexual aspects of their identity to academic researchers (Brooks et al 2022. PMID 35576143):

evidence was found that most furries did, indeed, report being sexually attracted to various facets of their furry interest (e.g., furry-themed media) and were sexually motivated to engage in various furry-themed behaviors (e.g., interacting with other furries)

Thus, my question is if individuals who identify as non-human animals are members of a protected class with respect to employment discrimination. Could such an individual assert this protection through the sexual orientation class?

The question focuses on the United States, but I would also be interested in prospectives from around the world.

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    The hypothetical fact pattern is an example of political trolling and has never actually come up. It is a delusional creation of politicians who see it as a logical extension of transgender rights to which they are opposed and see as absurd. See, e.g., coloradopols.com/diary/181141/…
    – ohwilleke
    Oct 9, 2022 at 23:20
  • It seems the answer would depend on whether or not they identified as an endangered species. In all seriousness, logic and facts do not bend to personal whims or political opinion. Jan 15 at 1:59

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In the US, no. This is because "protected class" is defined statutorily for a particular purpose, for example "civil rights", "employment", "housing". There can be variation in federal vs. state or municipal protected classes and what classes have which rights (e.g. "race" is included in all protected classes but pregnancy-discrimination is not federally protected with respect to housing), but so far nobody has defined "self-identifies as non-human" as a protected class.

If Congress were to pass a blanket law prohibiting discrimination on the basis of species, then (1) it would be illegal to not consider my dog as a job candidate and (2) it would be illegal to take into consideration whether a job candidate is a human versus a dog or a fern. But there is no such law.

"Non-binary" is not, per se, a protected class. The rationale of Bostock v. Clayton County is that one cannot legally discriminate based on whether a person is male or female, therefore one cannot legally discriminate based on whether one is a male who has sex with a female versus whether one is a male who has sex with a male, or whether one is a male who abjures sex, because they all reduce to discrimination based on whether one is male (or female). It's not legal to discriminate against furries based on whether they are male or are female, but being a furry is itself not a protected class.

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    "* being a furry is itself a protected class.* Is there supposed to be a "not" in this sentence? May 31, 2022 at 19:56
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The Supreme Court reasoning is that if a gay man is being fired for being gay, and the employer would not fire a straight woman in similar circumstances, then the man is being discriminated against on the basis of his sex: men who are attracted to men are being treated differently than women who are attracted to men. This logic does not recognized sexual orientation as being in itself a protected class, but rather recognizes that sexual orientation is defined in terms of a protected class (if all you know is that someone is attracted to men, then you can't determine whether that person is gay or not without looking at that person's sex, and sex is a protected characteristic).

Theoretically speaking, this logic does allow discrimination on the basis of some sexual orientations, for instance if an employer were to discriminate against only bisexual people, and not straight or gay people, then it would be difficult to argue that Bostock v. Clayton County is a precedent for finding that discrimination illegal (one can determine whether someone is bisexual without knowing their sex). A sexual attraction to non-humans would be even more difficult to apply Bostock as a precedent to. And even if there were an argument for Bostock being a precedent, there would be the current court's willingness to ignore precedent to contend with.

A more viable argument would be, as mikem said, to argue that this falls under the ADA's prohibition on firing people for mental health conditions. Quoting the link they posted

https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights

1. Is my employer allowed to fire me because I have a mental health condition?
No. It is illegal for an employer to discriminate against you simply because you have a mental health condition. This includes firing you, rejecting you for a job or promotion, or forcing you to take leave.

Note that the ADA prohibits discrimination on the basis of disability or perceived disability, so a plaintiff would not have to argue that non-human identification is a disability, only that it is perceived as one. The ADA does allow exceptions for legitimate business interests, so that would be on possible tactic for the defendant.

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  • There was not quite the same case long time ago in the UK: The company bosses very jealous wife didn’t allow him to hire a female secretary, so he hired a man. When the jealous wife found out the secretary was gay (meaning an affair with the boss would be possible) he was fired. That was gender based discrimination because a female gay secretary would have been fine according to the bosses wive’s logic. (Laws have changed since so today there would be a much simpler argument that the secretary couldn’t be fired for being gay).
    – gnasher729
    Oct 9, 2022 at 1:34
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Not for identifying as a furry, but they might have some protection under the ADA for non-discrimination based on a mental handicap. This might protect them to some degree with respect to housing, education, and certain lines of employment.

You can google for more on ADA protections, but some can be found here:

https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights

https://www.hud.gov/sites/dfiles/FHEO/images/MD%20Fact%20Sheet%20-%20HP.pdf

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  • A practical problem is that the furry wouldn’t want to claim that they have a mental handicap.
    – gnasher729
    Oct 9, 2022 at 1:38

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