LGJ: Wrath of the Discrimination King

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

GamePolitics recent posted a report that some employers may be 'discriminating' against World of Warcraft players. In fact, there have been longstanding reports of gamers, generally, not being the most favored employee in some workplaces. Of course, as soon as anyone reads the word 'discrimination' they immediately think 'lawsuit.' Whether that's an unfortunate byproduct of the direction of the American legal system or something else entirely is a discussion for another day. Today, rather, I want to take a look at the question of whether gamer discrimination could give rise to an employment discrimination lawsuit.

It's worth noting to begin that employment discrimination is a fairly narrow area of what people may think of as 'discrimination law.' It's generally rooted in Title VII of the Civil Rights Act of 1964, but grew from there into other acts like the Americans with Disabilities Act and Age Discrimination in Employment Act. Most of this is overseen by the US Equal Opportuity Employment Commission. It's also important to note that most of the provisions only apply to companies over a certain size, generally over 15 employees. And beyond that, many states have additional discrimination provisions that go beyond the federal ones.

For the purpose of this discussion, I'll be talking generally, but more or less in line with the Federal requirements. To start, the purpose of this legislation, generally, was to remedy what were seen as some faults in the free market labor system. This actually goes back as far as the 1930s with ideas like minimum wages, social security, and even child labor laws. One of the things that persisted was discrimination in employment, and the Civil Rights Act of 1964 set out to resolve that issue, among other things.

What is generally in place is analogous to an extension of the idea of equal protection from Constitutional law into employment. Basically, certain protected groups cannot be discriminated against, and based on the further evolution of the idea, have to be accommodated in a reasonable fashion. The most obvious protected groups are race and gender, but the list also includes: national origin, pregnancy, religion or creed, political affiliation, disability, citizenship, age, and veteran or reserve status. Some localities have extended this to other groups as well.

The general rule is that you can't discriminate base on those factors, with the general exception being if the person cannot physically perform the tasks required for the job. However, any other basis for discrimination is basically acceptable. That could be restrictions on appearance, such as tattoos or piercings or clothing, or, for our purposes, hobbies like gaming. Generally, the protected groups are based on some characteristic beyond the control of the person, i.e. something they're born with, or a deeply held belief. Things like appearance and hobbies are not the same, unless it's tied to one of those protected groups.

I'm not aware of any religious groups that hold gaming as a tenant of their beliefs, and thus it's unlikely that a discrimination case could succeed based on discrimination against gaming. Ultimately, though, if an employer is so disgusted with gaming, it may be time to ask yourself if you really would want to be working for that employer at all. Generally, careers aren't successful when the employee and employer have that great a culture clash.

With all this in mind, I wouldn't be too greatly concerned that gamers have no legal remedy against workplace discrimination. Authors like Marc Prensky have been reporting just the opposite, where many employers are seeing gamers are more valuable players, from the complex problem solving skills they learn in games to the interpersonal and management skills many gain from MMO guilds. Much like the political environment, as more gamers reach the top levels of management, the more gaming will be accepted as a hobby and form of entertainment. The dismal views of the 1980s and 1990s, where all gamers were loners who never left their parents' basements, are finally meeting with their long overdue demise.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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