Bill Banning Job Discrimination Against Gays Passes Senate

We knew it had the votes earlier in the week, but the Employment Non-Discrimination Act picked up even a few more Republicans as it passed the Senate today, 64-32. Via MSNBC:

Senate lawmakers on Thursday passed a bill banning workplace discrimination against LGBT individuals in a historic, albeit nominal, victory four decades in the making.

The Employment Non-Discrimination Act (ENDA) passed its final vote in the full Senate 64-32, just three days after its first since 1996, when a similar measure failed but just one vote. The full Senate would not vote again on a workplace protection bill for gays and lesbians until this past Monday, when lawmakers voted to begin debate. It was 1974 when Congress first saw a bill of this kind.

Signs of the measure becoming law were stunted earlier in the week, however, when Speaker John Boehner voiced his opposition on the grounds that it would cost small business and create "frivolous litigation."

Ten Republicans voted for its passage, including John McCain, Jeff Flake and Rob Portman (who famously flipped positions on same-sex marriage after his son came out of the closet).

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Comments

[blcartwright]

They need some competent editors over at MSNBC. Several sections of that were almost unreadable.

[PM]

Several sections of that were almost unreadable.

Are you certain editing was the problem?

[Winston]

Jeff Flake and Rob Portman (who famously flipped positions on same-sex marriage after his son came out of the closet).

So the libertarian heroes continue to show their libertarian colors.

[Eduard van Haalen]

Bear in mind, as I've mentioned before, that ENDA is even more popular than SSM - many people seem to consider it the moderate position between doing nothing for teh gayz and recognizing their unions as marriage.

[Some call me Tim?]

The progressives who hate marriage also view it as the actual fight worth having.

[jesse.in.mb]

The Senate version of ENDA has a religious exemption written into it and Portman added a amendment that made said religious exemption more explicit.

While it's less perfect than having no ENDA at all you must be pleased some concessions were made, no?

Although the House will probably not pass it, the can will get kicked further down the road and a religious exemption probably won't be written into the next version, so that's a bit of a fail.

[Eduard van Haalen]

The religious exemption tracks the religious exemption in the 1964 Civil Rights Act:

http://beta.congress.gov/congr.....port/105/1

EEOC guidance about the 1964 Act's exemption:

http://www.eeoc.gov/policy/doc.....igion.html

Nothing in there about florists, travel agents, bakers, etc., etc. They are pretty much screwed if the bill passes.

[Eduard van Haalen]

Basically, their "concessions" were to respect some parts of the 1st Amendment and to ignore the rest. Gee, thanks, guys!

[jesse.in.mb]

They are pretty much screwed if the bill passes.

Maybe if these employers run around firing people on the grounds that they were just 'too faggy to work with' or something.

"Dirk, this is the third time you've been late first thing in the morning, you know I need you here at exactly 6 to get the place open. I'm going to have to give you a written warning this time."

A couple of notes in their employee file and you say you're sorry it didn't work out and let them go. Our HR consultant can't stress enough how important it is to have a paper trail of written warnings before firing anyone just so they don't find cause to sue you for SOME kind of discrimination (remember I think ENDA is a stupid thing to hang the gay rights movement's hat on).

[Eduard van Haalen]

Hmmm, sure, if you're a religious employer and want to fire a male employee for calling himself Loretta and wearing mascara, all you have to do is make up some excuse about how tardy "she" was. And when "she" sues, tell the jury you didn't care about "her" gender-bending, it was just "her" lateness which bothered you. Then "her" lawyer gets access to your employment records and finds people who were late more often than "Loretta" but didn't get fired. The lawyer also gets a copy of that email you sent to your friend about how you didn't think it was fair to have your Christian business represented by a sexually-confused guy.

Then the jury is pissed at you for your lies and assesses damages (not to mention the fees you've already paid your lawyer, and you may have to pay "Loretta's" fees, too).

And when you appeal for sympathy because "I was assured that I could avoid the impact of this law by making up some pretext for firing the transgendered people," *Reason* commenters flood the threads with disgusted comments about how you should have been honest about your motives and taken your medicine instead of lying to the courts.

And on the philosophical plane, why should conscientious objectors have to lie, especially when their faith-based integrity would not allow it? Should Quaker pacifists have to fake heart disease to avoid the draft? Maybe there shouldn't be a draft after all!

[Eduard van Haalen]

I found the Portman amendment. It doesn't give any protection to the bakers, florists, travel agents, etc., it only prohibits the state and federal government from hassling those protected by the original exemption. But again, florists, etc. are still out in the cold.

Unless they follow the helpful suggestions of people who want them to commit felony perjury.

[jesse.in.mb]

Why did you hire Loretta in the first place or did Loretta significantly misrepresent herself in the hiring process (which is grounds for termination)?

Have you never broken up with a girlfriend saying "this just isn't working out, I'm not in the right place for a serious relationship" when you really meant "I can't stand the fact that you're a narcissist"?

Should Quaker pacifists have to fake heart disease to avoid the draft? Maybe there shouldn't be a draft after all!

If they take away the conscientious objector status then I would applaud the Quaker who got blue flu or whatever to get out of serving.

It should also be noted that most bakers and florists don't operate at a threshold where this law applies:

(A) a person engaged in an industry affecting commerce (as defined in section 701(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or more employees (as defined in subparagraphs (A)(i) and (B) of paragraph (4)) for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but does not include a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986;

[Eduard van Haalen]

Ah, yes, if you employ 20 people all you have to do is fire 5 of them and get exempt from the law. And so forth. That should help the old workforce participation rate.

Really, you're minimizing the impact of the bill by saying that religious employers can always lie. That's the point about the religious, though - some of them feel a compulsion to blurt out the truth. Sucks to be them, I suppose.

A Quaker who is conscientious enough to refuse the draft would probably be conscientious enough not to fake an illness. Not to mention that the military isn't going to just accept a note from your family doctor like in the Civil War. No, they're going to insist on having their own doctors do their own tests, and when they find you don't have the ulcer you claimed to have, you could be in big trouble.

Hiring decisions are covered by the law as well as firing decisions. If Loretta's lawyer discovers something incriminating during the very extensive discovery process, he'll be able to convict you of discrimination for failing to hire Loretta.

[Eduard van Haalen]

fire 6 of them. My arithmetic is rusty.

[jesse.in.mb]

I worked at a very busy bakery right next to one of the only florist shops in a busy, upscale neighborhood. The bakery never had more than 10 employees during the day and the florist never had more than 5, maybe six around valentine's day and graduation. My point in quoting that is that it's disingenuous to claim that mom and pop type places will be effected by this.

I think it's bad law and am repeatedly on record as such, but if I'm minimizing the impact, you're overselling it.

[Eduard van Haalen]

I only gave those examples as instances where *state* laws were invoked against them.

Anyway, here's a small-town bakery:

http://www.mycorsicana.com/about.php

Here's another bakery:

http://www.situp-cycle.com/201.....to-09-459/

[Eduard van Haalen]

And here's a florist:

http://directory.leadmaverick......index.aspx

(disclaimer: for all I know, they're perfectly happy to hire gay and transgendered on a totally nondiscriminatory basis)

[Eduard van Haalen]

Correction: I gave florists and bakers as examples because I thought the feds would go after the kinds of businesses the states would go after. If the federal bill is more lenient than the state laws, it still covers some local businesses - not to mention that someone who builds a large business and has more jobs shouldn't be penalized for that.

[Eduard van Haalen]

"Have you never broken up with a girlfriend saying "this just isn't working out, I'm not in the right place for a serious relationship" when you really meant "I can't stand the fact that you're a narcissist"?"

If she had the right to sue me for anti-narcissism discrimination, I'd be very worried. Not to mention all the girls I turned down who could sue me for "dating discrimination."

[Eduard van Haalen]

"Our HR consultant can't stress enough how important it is to have a paper trail of written warnings before firing anyone"

I'm going to guess this isn't advice to make illegal pretextual firings, but to back up legal firings with the appropriate paper trail.

[Paul.]

Which is ridiculous. Passing SSM did absolutely zero damage to a single soul in this country-- it was purely a moral stance. ENDA is a real law that directly affects people with a new regulatory stricture and makes personal choices about whom they want to associate with a crime.

[Eduard van Haalen]

The two go together like a horse and carriage.

[Calidissident]

Doesn't your earlier post about how anti-discrimination laws are more popular than SSM kind of poke a hole in your theory than such laws are caused by SSM? A lot of people in this country believe that discriminating based on sexual orientation (not to mention race, religion, gender, etc.) is wrong (I'm one of those people). Many of those people support laws banning discrimination (I don't support such laws regarding private individuals and organizations) - I'm not sure why that's surprising, given that so many people of many different political stripes in this country support legislating personal morality in one form or another. And I'm not sure why it's so surprising that many people who would support outlawing discrimination against gay people would also support gay marriage. None of that means the latter causes the former.

[Eduard van Haalen]

I may have a link on that topic later. Bottom line - there is an effect.

[Winston]

So will Peter King vote for this? Gerry Adams doesn't like Enda.

[Paul.]

I'm not following this closely, but is there anyone in the senate or congress voting against this making the principled point about freedom of association, and the danger that laws like these may block a gay group from hiring gay people as they choose because it might benefit their organization to have someone who has the advantage of the shared gay experience? Anyone?

[Tony]

I'm sure they make it in private. Freedom of association has always been the go-to right for bigots arguing in favor of legal discrimination.

[Swiss Servator, I got nothing.]

Can somebody run this through the Derp to English translator app?

[Paul.]

I think that warning about unintended, but completely predictable results of bad laws is like a racist codeword. My derp's a little rusty, but that's what I got.

[Tony]

The principle has always followed the bigotry. For every anti-minority sentiment there has always been, frankly, an anti-federal government principle to come along to justify it.

That the principle-excuses seem to have outlived their bigoted origins in some young, impressionable libertarians, who not take them as something meaningful, is interesting in the way that the anthropology of tribal cults is interesting.

[Eduard van Haalen]

lol, I was just reading a speech of Sen. Charles Sumner (R-Mass) from 1854, saying the Fugitive Slave Act is "in derogation of the rights of the states." I suppose this "anti-federal government principle" was racist?

And let me guess, criticism of the Japanese-American internment was racist, too?

[Paul.]

Feds always know best.

Almost every discriminatory policy in this country was midwifed and enforced by the government, the one institution Tony wants more of.

[PM]

Uppity bigots thinking they have "rights" or something...

[Bill Dalasio]

Tony, you disingenuous statist piece of shit, the freedom of association argument with regard to race was most closely associated with Barry Goldwater, an NAACP member who desegregated his own business before any desegregation laws were on the books and funded legal challenges to segregation laws.

[Emmerson Biggins]

He doesn't approve of freedom of association, because that would mean people aren't forced to associate with him at gun point any more.

[califernian]

moron.

[Chief Justice John Jay]

The tricky thing about that is that the same logic applies to race, religion, sex, and whatever else is already on the list, and we've seen how much mindless crap Rand Paul got for even suggesting that there are non-bigoted reasons to oppose those laws. Given how many more important things there are to pick fights about, I can't really blame a politician?even one who's more or less libertarian?for preferring to avoid that can of worms altogether.

Of course, the other tricky thing is that it involves an understanding of (and the ability to articulate) both principles and nuance.

[GILMORE]

a thought which may be useful (or not)

The primary impact of the legislation will not be to change anything in reality for gay or non-gay employees in any way.

Employee hirings and firings will likely occur exactly as they would had the law never been passed.

What the law WILL do, more than anything else, is require the General Council of any larger employer to have a variety of programs implemented ensuring 'compliance' with the new codes. These programs will a) cost an unneeded boatload of cash, and b) waste a bunch of people's fucking time doing monthly/quarterly/annual compliance attestations and whatnot saying "yeah, I haven't a) been gay, or b) felt persecuted, or c) persecuted gays lately."

I say this from the POV of working in finance, where I have to jump through about a dozen different bullshit compliance hoops every year which have no bearing on my job, who I work with, or any kind of connection to reality at all.

in other words = more red tape. or pink tape. or whatever you want to call it.

just my 2 shekhels.

[GILMORE]

to add to this - there will also be a small cottage industry in the legal biz seeking out people who (rightfully or not) may potentially provide an example of a grievance to be made. They will jump on these people and use them to make hay from the law. A la every other 'workplace discrimination/injury/harassment' law on the books.

[GILMORE]

in other words.... the whole law is just 'lawyer food'. Really has nothing to do with gays or job equality or justice or anything else. Just more stuff for petty lawsuits, and greater costs for employer litigation insurance.

[califernian]

^^ThiS

[johnl]

If enacted, the law would make it harder for gays to get jobs. It makes them ticking time bombs, and rational hiring committees will find pretexts not to hire anyone who seems gay. Like the ACA but worse.

[ReasonableS]

I don't understand this. How is it different than any other protected class? Why would these new classes be ticking time bombs and not the old? Also, if it can be shown you have a policy not to hire, isn't that a violation of ENDA as well? If you willing to exclude homosexuals because you think they will be more likely to sue, would you do the same for racial minorities?

My biggest interest in this bill which won't pass the House so the discussion is probably moot is how does it work in right to work states. If you can fire anyone without cause, why would you list the reason at all?

[Rhywun]

I'm totally going to feel free to gay it up at my 100% heterosexual Wall Street job now. Because until now I was always afraid of getting fired.

[optimusratiostultum]

Private citizens oughta have the right to as biggoted an asshole as they feel.