Law

ENDA Returns for the Umpteenth Time, But Has Society Already 'Evolved' Past It?

Who is discriminating against gays in the workplace these days (besides those who will still be exempt from new regulations)?

|

Maybe switch the colors to green this time?
HRC

Today the Employment Non-Discrimination Act (ENDA) was reintroduced to Congress for consideration. The legislation would add sexual orientation and gender identity to the list of ways to try to get your supervisor fired categories in which hiring and workplace discrimination is forbidden. The law provides exemptions for religious organizations and businesses with fewer than 15 employees.

The legislation has been introduced to Congress regularly since the 1990s (transgender protection is a relatively recent addition) but hasn't passed even under a Democrat-controlled Congress, even with some modest bipartisan support. With the speed of "evolution" on gay marriage recognition by politicians in 2013, it may get its moment soon.

The Wikipedia page for the legislation is amusing in that libertarians are the only people listed as potential objectors to ENDA who aren't conservative Christians. A 2010 essay from David E. Bernstein published at the Cato Institute (which somebody linked to the Wikipedia entry) defends libertarians against accusations of racism or homophobia (and other bias claims) by pointing out exactly how much power these laws give the government over the citizenry:

[S]upporters of antidiscrimination laws typically focus on laws banning racial discrimination.  They do so because opposition to race discrimination has great historical and emotional resonance in a nation that had institutionalized racial oppression, including chattel slavery, for hundreds of years.  However, federal antidiscrimination laws also apply to discrimination based on religion, sex, age, disability (including one's status as a recovering drug or alcohol addict), pregnancy, marital status, veteran status, and even military recruiters.  State and local antidiscrimination laws cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.

The proliferation of antidiscrimination laws explains why libertarians are loath to concede the principle that the government may ban private sector discrimination.  There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don't do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!

The obvious retort is that antidiscrimination laws should be limited to "real" discrimination.  But there is no consensus as to what constitutes "real" discrimination, nor, not surprisingly, does there appear to be any principled definition that legislatures have followed.

One can, for example, define discrimination as treating the alike unequally, but antidiscrimination law does not always follow this definition. Federal antidiscrimination law, for example, requires employers not simply to treat disabled and non-disabled alike, but to make costly "reasonable accommodations" for the disabled.  Employers have the same legal obligation to their religious employees.

It's also difficult to determine how much discrimination against gay and transgendered employees is an actual thing anymore. Individual incidents will occasionally garner media coverage but calculations of actual workplace discrimination seems harder to come by. The Williams Institute at UCLA looked at states that have their own nondiscrimination policies protecting gay employees in 2011 and calculated the rate of complaints, which ended up being fairly similar to those for racial or sex discrimination, about 4 complaints per 10,000 gay workers (in both the public and private sector). The ultimate disposition of the complaints, though, does not appear to be calculated, so there's no way of knowing how many of those discrimination cases even proved to be valid.

The Human Rights Campaign, a major lobbyist for ENDA, seems focused entirely on whether or not the protections exist. When making note of the lack of workplace protection (and by the way, they show that 88 percent of Fortune 500 companies now have their own voluntary antidiscrimination policies protecting gay workers), there's seemingly very little effort to determine actual discrimination levels. There's no differentiating between the legality of antigay discrimination versus the reality of whether workplaces are engaging in discrimination even in the absence of government involvement. And the actual cases getting the most publicity (there's one today, in fact) often revolve around religious organizations (especially the Catholic Church), which will be exempt from ENDA anyway.

Yes, there is a lengthy history of anti-gay employment discrimination in the United States that goes back decades. But workplaces have "evolved" far faster than the government has. Even if we were to set aside libertarian support for freedom of workplace association and distrust of expanding government regulation (and I'm not suggesting you do), it's still worth asking the question of whether ENDA would actually accomplish anything culture and business economics isn't managing on its own.

Advertisement

NEXT: Twitter to Improve Security

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The law provides exemptions for religious organizations and businesses with fewer than 15 employees.

    I’d like to propose a new idea to the Congress. Any law that will require an exemption of any kind should not become a law. On top of that, any Congressperson who puts forth such law should be flogged with a hammer made of dead rats.

    1. “flogged with a hammer made of dead rats.”

      Maybe struck with a hammer made of dead rats? Or flogged with a Rat o’ Nine Tails?

      1. Rodents of Nine Tails? I don’t think they exist.

        1. If the right rumor gets started, all those flakes I went to high school with will flood my FB news feed with fresh, new anti-Monsanto GIFs.

      2. Hey, if you’re gonna go through the trouble of making a hammer out of dead rats then you’re damn well gonna flog somebody with it.

    2. I’m assuming non-Congress people would be exempt from this law.

    3. How do exemptions to these laws get past being considered bills of attainder?

      1. Um. Because … the courts typically bend over backwards to accommodate every whim of our criminal Congress?

        That seems to easy. Is this a trick question?

    4. The 15 person limit is to satisfy the commerce clause, the idea being that if a business has more than 15 employees, it has sufficient contacts with interstate commerce to warrant regulation by Congress. I’m not saying I agree with the reasoning, but that’s the rationale.

  2. The law provides exemptions for religious organizations and businesses with fewer than 15 employees.

    So I have to either keep my gloryhole business under 15 employees or hire some goddamn homos? Fucking tyranny.

    1. …..or hire some goddamn homos?

      Dude….unpaid interns.

    2. Or reorganize it as a church. It won’t be the first house of Mammon disguised as a house of God.

    3. You already don’t pay me shit, you slavedriver!

      1. You get a fair wage for a hard day’s work, you greedy queen. Also, how the fuck did you get out of your cage?

        1. You think gruel, sodomy, and the lash are a fair wage! I don’t even get rum!

          Your locks are pathetically simple, by the way. You might want to understand how easy they are to pick.

          1. The pins of his locks are always placed halfway between forty five and ninety degrees which means you’ll need the expert perk to crack them.

          2. You think gruel, sodomy, and the lash are a fair wage!

            The things kids complain about these days.

          3. I only get sodomy and the lash so stop your bitching.

  3. “””It’s also difficult to determine how much discrimination against gay and transgendered employees is an actual thing anymore.””‘

    Why does it matter to the government. Why should employers be forced to hire someone they don’t want for whatever reason they want?

    The Civil Rights Act we went from a situation where certain states and localities had laws preventing someone from being hired to the present situation where there are laws requiring people to be hired even if they are not wanted

    1. Let’s see here. We have a problem in that laws are forcing people to make certain choices, and that’s bad. Hmmm. Let’s replace them with laws that force people to make different choices! Hooray!

    2. the present situation where there are laws requiring people to be hired even if they are not wanted

      And kept on the payroll even though they’re useless.

    3. You’re clearly not thinking like a bureaucrat.

      New York has laws requiring that we hire the best person for the job in state service. Managers always find a way around these laws to hire their chosen candidate, especially when they’re political people. So long as you follow the letter, you can reach any decision you want.

      It all depends on the meanind of the words ‘is’ and ‘shall’…

      1. This is why in a generation we’ll be like France and Greece – go ahead and make all the laws you want, we’ll just ignore the ones we can get away with.

    4. Hard to keep a spoils system going if you have no favors to give out.

    5. It’s not just hiring that is affected, but also contracting and service provision. A florist in, IIRC, Florida was just sued by the state for refusing to agree to provide flowers for a gay couple’s wedding.

    6. Fine, I’m gonna cross-dress and apply to Hooters. If they don’t hire me, I’m suing them.

  4. Such legislation serves one and only one purpose: to enrich trial lawyers.

    1. Exactly. I see the kind of cases companies face up close, and a very large majority of them are totally baseless, even when the companies lose or settle. I mean, like people-fired-for-sleeping-on-the-job baseless.

      It’s not that there isn’t discrimination, sexual harassment, or other problems; it’s that these laws are swallowed up by massive abuse and, frankly, fraud.

      1. The system is definitely broken when it is cheaper to settle than it is to prove your innocence.

        1. Especially with all of the people who assume business bad, worker good.

          1. Are you saying we live in a worker’s paradise?

            1. No, they suffer under the capitalist yoke, of course. But they are perfect in their morals, ethics, ability, and zeal.

              1. At least we’re only a few steps away. I eagerly await the glorious revolution.

                1. From each according to his ability, to a few according to their greed.

    2. Having worked in employment law for the last ten years, I can tell you that there are some shysters out there who will prosecute any claim, provided that the client pays. They’ll promise the sun and the moon and the starts to the client, who ends up paying $30,000 in fees for a $7,500 nuisance settlement. If you take cases on contingency, like I do, you have to make sure the case has some teeth. Otherwise you can spend hundreds of hours of your time and tens of thousands of dollars of your money on a loser. I’ve personally known attorneys who have gone bankrupt because they gambled and lost on the wrong cases. Of course, if you hit a big one you get a big payoff. Fees add up when you’re working 14 hour days and charging $400/hour. Risk/reward.

      1. Of course, if you hit a big one you get a big payoff.

        I am so glad that we can completely usurp the property and association rights of employers in order for you to bill $5,600 a day. It makes it all worthwhile somehow.

  5. ENDA Returns for the Umpteenth Time, But Has Society Already ‘Evolved’ Past It?

    Daddy (lawyer) needs a new Beemer(*)!

    That’s why “we need” ENDA.

    (*)BMW

  6. It’s pretty perverse that we let government discriminate in its treatment of taxpayers, while private citizens are barred from doing so. Shouldn’t it be the other way around?

    1. Silence, peasant! You’ll do as you’re told.

  7. So I can start using the women’s bathroom soon without fear of being fired?

    1. So long as you refrain from penis-smacking, yes.

      1. What’s the point of going in the women’s bathroom if you can’t smack the penis around a bit while you’re in there?

        1. Look, I don’t write the laws.

        2. No one respects the fetish of a guy turned on by the sound of a woman peeing in the next stall over. Why must there be so much hate in the world? We, I mean you, need a law to protect us, I mean you. Wait, no law shall be made that protects a class of individuals whose existence offends the taste of upper middle class women. Gays use to be members of that class until faghaggery became popular. There is still hope for us! I mean you, perve.

    2. Shut up, the slippery slope *doesn’t exist!*

      1. Sarcasm aside, this doesn’t even require slippery slope.

    3. No, you’ll still be fired, but then you can sue.

    4. As long as you’re willing to wear a dress or skirt and start insisting on everyone calling you Mrs. Demonocles, yes.

      In all seriousness, if this passes, what’s to stop straight white men from claiming that they’ve been gay all along and were just afraid to come out of the closet for fear of discrimination. But now that this law’s been passed, don’t you dare even think about laying them off, no matter what! That’s discrimination!

  8. How dumb would you have to be to hire one of these “protected classes” or whatever they call them these days? They might be the best employees in the world, but the liability for your company is immense. It is asking to get sued.

    How easy would it be to make up a reason to not hire them, even if they are the best candidate? Took too long to respond to a question, werent dressed quite right, etc. Make something up. Anything to prevent them from knowing that you are discriminating. Who would know?

    1. BINGO.

      We already watched this happen with the ADA. When companies realized they could get sued into oblivion for terminating a disabled worker for cause, they just stopped hiring them.

      I’ve tried to explain this to women who want an equal pay law, but of course they have no clue and can’t be reasoned with. They don’t realize they’ll go from lower pay to no pay.

      1. Nevermind that they aren’t actually getting paid less than their male coworkers, just less then men on average.

        1. Hey! They shouldn’t get paid less just for taking months off to have a baby and then years to raise a kid. They should get all the raises their male coworkers got while working straight through that time!

        2. And even that’s debatable.

          But it’s all about perception, my friend.

    2. That’s often what letting someone go looks like. If my HR manager had her way there’d be three written warnings about certain behaviors or poor work performance before they got fired. My boss plays fast and loose with that though leaving my HR manager terrified we’re going to get sued for something.

      A former coworker got knocked up after her second strike just to make it more difficult to let her go, a few months before she’d told everyone how she had absolutely no interest in getting married.

      1. You have to cross every t and dot every i with EVERY employee to have a good chance at not getting sued, and even then it may not be enough.

        A friend of mine managed a place where they disproportionately terminated black employees over whites and hispanics….due only to work performance. The blacks just did a poorer job, on the whole. But they had the employee file with every little thing documented, and they provided a copy to the employee who was terminated. They had it so airtight the employees had nowhere to go.

        There wasn’t anything to sue over.

      2. Got knocked up to avoid being fired. Words fail.

        1. I saw plenty of “knocked up” to avoid being deployed. A bit of a difference.

      3. Does remind me of my sister’s situation some years back. She hated one of her coworkers who was treated like a prima donna, and she would complain about her to me. Then cer oworker goes on maternity leave and my sister is tasked with the coworkers job plus her on without any compensation. I had to talk her out of murdering their boss. He didn’t create the system, those politicians she keeps voting for did.

      4. Belly Plea

        The plea of pregnancy, generally adduced by female felons capitally convicted, which they take care to provide for, previous to their trials; every gaol having, as the Beggar’s Opera informs us, one or more child getters, who qualify the ladies for that expedient to procure a respite.

        Dictionary of the Vulgar Tongue (1811), by Francis Grose.

    3. Everyone is in a protected class. Gender is a protected class, so all males and females (and variations thereof) are protected. Race/ethnicity color is a protected class, so all people are protected, to the extent each has DNA.

  9. “With the speed of “evolution” on gay marriage recognition by politicians in 2013, it may get its moment soon.”

    No, no, there is *no connection* between SSM and increased government regulation of the private sector!

    1. “it”=ENDA, per the article

    2. There isn’t a causal connection. Both SSM laws and antidiscrimination laws are symptoms of increasing societal acceptance of homosexuality. One law isn’t causing the other.

  10. Why do you want minorities to die of hunger on the streets?

    1. Not the streets – the sidewalks. If they were on the streets, they’d be run over long before hunger took them.

  11. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don’t do well on standardized tests!

    The sad part is, that isn’t even a strawman.

  12. the Employment Non-Discrimination Act

    Does anyone but me get incredibly angry at the names they give legislation to make it appear as though it has only noble goals. It’s disingenuous at best and a downright manipulative lie at best.

    ACA?
    Jobs creation act?

    1. That second one should be worst, not best… Angry typing fail.

  13. Go for it dude! Roll that beautiful bean footage!

    http://www.GotzMyAnon.tk

  14. John Fund thought he was discriminated against in rental housing in San Francisco for his heterosexuality.

Please to post comments

Comments are closed.