Wednesday, November 20, 2013

Ending discrimination of the LGBT community at work

In 1996, eventual failed Republican presidential candidate, Rick Santorum stated his opposition to the Employee Non-Discrimination Act.  He said, “the bill would extend special privileges, not based on a person’s status in our society, but rather based on their lifestyle choice.” 

Every Congress, since 1994, a piece of legislation known as the Employee Non-Discrimination Act (ENDA) has been considered.  Similar legislation has been proposed, dating back to 1974.  But on November 4, 2013, the Senate held a cloture vote to consider the bill.  Three days later, the Senate, for the first time, passed ENDA 64-32, as ten Republicans joined Senate Democrats in the passage of the bill.  ENDA might not pass the House or likely even be brought to vote, despite a majority of support from every Congressional district; President Barack Obama supports the passage of the bill. 

ENDA extends federal employment discrimination protections currently provided to those based on race, religion, gender, national origin, age, and disability to sexual orientation and gender identity.  ENDA prohibits employers, employment agencies, and labor unions from using sexual orientation or gender identity as a basis for employment decisions.  This includes hirings, firings, promotions, and compensation.  Meanwhile, small businesses with less than 15 employees are exempt.  All religious organizations from Title VII’s prohibition on religious discrimination will also be exempt.  The businesses that are not exempt are not allowed to have preferential treatment, like quotas, based on sexual orientation or identity.  The law does not allow the Equal Employment Opportunity Comission (EEOC) to compel employers to collect statistics sexual orientation and identity.  Finally, the law does not apply retroactively.  My relative straightforward explanation, notwithstanding, some see this as a controversial bill.

Santorum’s views, that homosexuality, are held by a multitude of those on the right of the political spectrum. The American Psychological Association (APA) has stated that there is no consensus in the scientific community of what causes homosexuality.  The APA also concludes that “most people experience little or no sense of choice about their sexual orientation.”  A study in Sweden in 2008, the largest twin study conducted, concluded that homosexuality is “largely shaped by genetics and environmental factors.”  Homosexuality is, by and large, accepted by the scientific community as not a choice.

The one who ultimately holds the fate of ENDA in his hands in the House of Representatives is Speaker of the House John Boehner.  Boehner criticized the law, claiming that ENDA will “increase frivolous legislation and cost American jobs.”  The vast majority of Fortune 500 companies (88%) have already implemented non-discrimination policies that include sexual orientation and 57% implemented policies that include gender identity.  I’ll note that the Human Rights Campaign has a lower estimate than what was concluded by the Fortune 500 Non-Discrimination Project which found that 96.6% of Fortune 500 companies have implemented similar policies.  One of the more notable supporters of this type of policy is Apple CEO Tim Cook.  The largest business coalitions, including the U.S. Chamber of Commerce, the National Federation of Independent Businesses, and the National Association of Manufacturers have remained neutral on the law.   In these cases, the coalition groups were brought to neutrality by including language that explicitly prohibits lawsuits brought under the disparate impact theory.  While it’s far from outright support, neutrality from these large coalitions ensure that the businesses that they represent are not in opposition to this law.  If that was not enough, the Human Rights Campaign has made a list of the Business Coalition for Workplace Fairness, leading employers who support the passage of this legislation.  Businesses are generally supportive of this legislation, it seems unlikely that it will cost many Americans jobs.

For some reason, Speaker Boehner does not seem concerned about those who are not getting jobs because of their sexual orientation or identity.  Despite a growing number of businesses who support the legislation or have similar rules in place, discrimination in the private sector continues.  A law in place will help curtail this behavior.  A paper published by the Williams Institute at the University of California at Los Angeles School of Law found that the harassment of gay, lesbian, bisexual and transgender employees continues to exist and is pervasive.  They found that 16 to 68% of LGBT people experienced employment discrimination.  Another study published by the University of California at Los Angeles found that 38% of LGBT employees have faced some type of employment discrimination.  Other studies suggest that LGBT employees are paid less than their heterosexual colleagues.  LGBT employees also find that they have less access to health insurance.  Not surprisingly, they feel, more often, that they were fired or denied promotions based on their sexual orientation or identity. In 2007, the American Civil Liberties Union found real life examples of what workplace discrimination looks like.  LGBT employees currently without protections have to hide their sexual identity.  They have to police every conversation, including casual conversations, because they fear for the harassment or possible job loss if other employees find out about their sexual identity.  Discriminating against the LGBT community is costly to businesses, currently. The National Commission on Employment Policies found that discriminating against LGBT people cost $47 million in training costs and unemployment benefits, alone.  Excluding terminations, it is estimated that this type of discrimination cost $1.4 billion in lost output because of a hostile work environment and a reduction in gay and lesbians’ work productivity.  The worry for many Republicans is the impact on litigation on these businesses.

During the Senate committee’s hearing on ENDA, Senate Republicans modified the legislation to make it less favorable to a key Democratic fundraising group of trial lawyers.  The Williams Institute at the University of California at Los Angeles law school found that states that had similar legislation did not see an increase in litigation.  In fact, claims made by LGBT are less per capita than those based on race or gender.  Another study by the Government Accountability Office (GAO) found that in the 22 states that prohibit sexual orientation discrimination and the 18 that also prohibit discrimination based on gender identity there were “relatively few employment discrimination based on sexual orientation and gender identity filed in these states.”   These studies suggest that the idea of frivolous lawsuits is overblown.

The last refuge of those against the bill seem to be that it infringes on people’s religious beliefs.  As currently written, ENDA exempts religious organizations from having to participate in the legislation.  Senator Orrin Hatch of Utah has been a critical ally of ENDA, especially for religious freedom.  A Republican Senator met with the Log Cabin Republicans stated that Hatch’s knowledge on religious freedoms and the protections for churches, religious schools, and non-profits was reassuring, when he considered his vote for ENDA.  Unfortunately to many, the religious exemption does not apply to businesses that are partly religious in nature or other private businesses.  Returning to the quote from Rick Santorum, “the bill would extend special privileges, not based on a person’s status in our society, but rather based on their lifestyle choice.”  But let’s turn this, slightly.  The choice to discriminate based on sexual identity or sexual orientation is not based on a person’s status in our society, but it is, in fact a lifestyle choice.  Santorum and others who do not support ENDA based on religious freedoms believe that we should grant special privileges to those who choose to discriminate not because of status, but because of a choice they made, to discriminate against employees.


ENDA is a rational piece of legislation that extends protection that was found in the Civil Rights Act to the LGBT community.  Despite the ideals of business leaders, the LGBT is routinely discriminated against and a law prohibiting it can help end this discrimination.  While we prohibit discrimination based on gender, race, age, and disability, we have chosen to not protect some people based on the assumption of choice.  We can choose to correct this. 

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