Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.
Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.
However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment.
The voting patterns were noteworthy. Of the 25 Democrats who voted "no", 18 come from rural and conservative districts, mostly in the South. The remaining seven Democrats who voted "no" did so because the bill did not include "gender identity," a provision that would have protected transsexuals, crossdressers, and other gender nonconformists from employment discrimination. The seven are: Rep. Yvette Clarke (D-N.Y.), Rush Holt (D-N.J.), Michael Michaud (D-Maine), Jerrold Nadler (D-N.Y.), Edolphus Towns (D-N.Y.), Nydia Velazquez (D-N.Y.) and Anthony Weiner (D-N.Y.). Thus, six of the seven come from the New York area, and all represent states that already protect gays from employment discrimination.
The 35 Republicans supporting ENDA — almost 20% of the Republican caucus — more than made up for the Democratic defections and were critical to House passage. These Republicans, with one exception (Rep. Jim McCrery--Louisiana), come from districts outside the traditionally conservative South.
Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee. Much of the report is devoted to recounting the history of the numerous attempts over the past 33 years — beginning with the first bill introduced by Bella Abzug in 1974 — to get Congress to deal with anti-gay employment discrimination. That history tells a story of painfully slow political progress made in each session of Congress, with more co-sponsors backing an anti-discrimination bill in every session. Other parts of the report document the prevalence of anti-gay job discrimination, as well as the economic and psychological impact of such discrimination.
In the section-by-section analysis of the committee report, I noticed a couple of passages relevant to the recent controversy over adding "gender identity" to the bill. On p. 31, the report notes that ENDA forbids discrimination based on "actual or perceived sexual orientation." Thus, "ENDA creates a cause of action for any individual — whether actually homosexual or heterosexual — who is discriminated against because that individual is 'perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex." Obviously, this interpretation of ENDA offers some protection to those employees whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis. It doesn't protect transsexuals or crossdressers as fully as adding "gender identity" to the bill would have, but the bill moves in that direction.
Additionally, on p. 33, the report puts to rest any fears that stripping "gender identity" from the bill would lead federal courts to conclude that Congress meant to impliedly reverse Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates Title VII. The report concludes that Section 15 of ENDA, entitled "Relationship to Other Laws":
Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).
This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists disappointed that the bill isn't more comprehensive. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.
ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Abzug's bill had only four co-sponsors and was completely ignored by the House Judiciary Committee. Yesterday 235 members of the House backed the same basic idea.
Many people deserve credit for making yesterday happen, including gay activists (many long dead) and their heterosexual allies, law professors, lawyers, members of Congress and their staffs, and commentators. But one person in recent history, more than anyone else, is responsible for yesterday's historic and precedent-setting vote.
That person is Barney Frank. I disagree with Frank about many things. But without his work over the years, without his dogged determination, without his eloquence and parliamentary skill, without his willingness to stand up to critics on his left and his right, and without his pragmatic understanding of the nature of incremental progress in civil rights, there would be no ENDA in any form. Period. Thanks to Barney Frank, we took one huge step closer yesterday to the day when all gay Americans — including especially the millions of them in the South, Midwest, and Mountain West — can live their lives without the debilitating fear and devastating consequences of losing their jobs because of whom they love.
Related Posts (on one page):
- Barney Frank's ENDA:
- Bush to veto ENDA?
- Lambda's ENDA:
- Pragmatism, principle, and law in ENDA:
Ditto here. Also, best of luck to Rep. Frank in another of his Congressional endeavors, namely trying to get UIGEA repealed.
DC: The bill, as introduced, is H.R. 3685: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h3685ih.txt.pdf. It's discussed in detail in the posts to which this one is linked.
Sure. Everyone knows that just about anyone living between the coasts is a small-minded provincial redneck who is just ready to discriminate against any gay person that dares to cross his path.
I think he was referring to the lack of state legislation in those states, such that federal legislation would be their only protection.
Certainly not everyone or even most folks there. But how about quite a few?
11/7/07 Vote 1057: H R 3685: Employment Non-Discrimination Act (Enda) Yes No Yes
11/7/07 Vote 1056: H R 3685: Employment Non-Discrimination Act (Enda) Yes Yes No
11/7/07 Vote 1055: H R 3685 Yes Yes Yes
11/7/07 Vote 1054: H R 3685 Yes Yes Yes
11/7/07 Vote 1053: H RES 793: Providing for Consideration of H.R. 3685, to Prohibit Employment Discrimination on the Basis of Sexual Orientation No No Yes
11/7/07 Vote 1052: H RES 793: Providing for Consideration of H.R. 3685, to Prohibit Employment Discrimination on the Basis of Sexual Orientation No No Yes
11/7/07 Vote 1051: On Motion to Adjourn Yes Yes No
Though to appease Frog Legs, I think it's entirely POSSIBLE that a Republican from Shreveport would vote in favor of gay rights; I just can't figure out why McCrery did.
You can ignore the email I just sent you. I'm not sure if you were asking the question facetiously, but your first link provides the answer as to why Rep. McCrery would vote the way he did.
Only 4 midwestern, 1 mountain and 0 southern states have private-employer anti-discrimination legislation based on sexual orientation.
Congress itself discriminates based on sexual orientation. It bans gays from the entire military, even in contexts where there is no conceivable privacy rationale for doing so (the net result being that people say they are gay just to get out of combat duty, and a few qualified people, including scarce Arab linguists, get booted out just for being gay). Through DOMA, it also refuses to recognize gay marriages even if they are valid under state law.
Yet, here the House is preaching to the private sector not to discriminate, by pushing a bill that would punish businesses with big fat damage awards if they are found guilty by a judge or jury of discrimination. (And give them a large incentive to settle even unproven discrimination cases, by virtue of the Christiansburg Garment attorneys-fees rule embedded in ENDA, which allows plaintiffs to collect their attorneys fees if they win, but very seldom allows businesses to collect their attorneys fees if they prevail).
And businesses may be found liable if they allow their employees to say things in the workplace that are deemed to be antigay (which would be deemed "sexual orientation harassment" by ENDA), such as, perhaps, criticizing gay marriage or defending the military's gay ban (as Professor Volokh notes in his law review articles dealing with harassment law, such "hostile environment" harassment regulations exact a very real cost to free speech and civil liberties).
Justice Brandeis said that "Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example."
Maybe the government should set a good example before it lectures the private sector. (Both federal and state governments should stop discriminating based on sexual orientation).
I think that a business, even in the South, Midwest, or Mountain West is already far less likely to discriminate based on sexual orientation than federal agencies. (That's true whether or not the business is governed by local gay-rights ordinances, which already cover most large southern, midwestern, and mountain states cities, like Dallas and Phoenix).
The few businesses that do hire or fire based on sexual orientation might be less likely to do so if the government set a good example by not doing that itself.
There are also serious religious freedom issues. One thing I would like to see is how ENDA would apply to religious broadcasters. (I realize it exempts churches' religious hiring decisions as such, but am not sure how far its religious exemption reaches). Papers such as the Christian Science Monitor have sometimes successfully asserted First Amendment defenses to antibias laws, but under a branch of religious freedom jurisprudence whose viability has been attacked by commentators in the aftermath of Employment Division v. Smith. (The D.C. Circuit suggested that "diversity" rules are subject to religious-freedom limits in the religious broadcasting case of Lutheran Church v. FCC (1998)). Courts have found it necessary to supplement Title VII's textual religious exemption with a broader "voice of the church" doctrine rooted not in the statute itself but directly in the Constitution in the Rayburn line of cases. That line of cases, too, has come under fire, meaning that a narrow exemption in ENDA might be the only safeguard for religious autonomy that a religious entity could rely on, raising possibly thorny and divisive legal issues.
And, to the extent that anyone cares about pesky "rights" in the traditional sense (ie, right exclude as opposed to right to take what you want), we will soon be a little less free.
It's more than a little silly to blame Congress for DADT. Yes, it's a statute, but if the military wanted it overturned it would be gone tomorrow. It's purely a military policy. The Federal Government doesn't discriminate when it comes to hiring for civilian jobs; the case that the military is special is certainly non-frivolous.
As for DOMA, it's nice to see you advocating for its repeal, but the fact is that marriage and employment are two different things. I'm in favor of all sorts of rights for gay people but I'm hardly going to reject employment rights just because they get conferred before marriage rights.
I agree with you 100%, happylee.
Why doesn't the Constitution protect freedom of association? Why must employers disregard behavior, like homosexuality, in hiring?
If the government can force you to associate with people, what real freedom do have at all?
I've already seen it in industry for years, but I think the popularity of contract workers will grow. Here's how it works: If you hire contractors to supply in your factory you can get rid of individual workers at the drop of a hat. Since you're not directly employing them, you just tell the contractor that you don't want Mr. Jones to return after lunch. How the contractor employs Mr. Jones outside of your factory is not your concern. If the contractor has no other work for Mr. Jones, then he will not call him in.
The reduced liability for the factory is worth the turn over. With more laws like this one coming down the pike, it will become rare to be a direct employee for any type of industry.
And no one seems to be able to explain what it is about being a homosexual that merits such privileged treatment.
You may not have bothered to read the legislation in question, but like most antidiscrimination law, it bans discrimination based on a classification, not a status. In other words, when the law bans sex discrimination, that includes men. When the law bans religious discrimination (hey Alcyoneus, I don't like that my employee associates with a bunch of bigoted Southern Baptists at his church, can I fire him now?), that includes Christians. And when the law bans sexual orientation discrimination, that includes straights. MTV's division for LGBT programming cannot refuse to hire a straight guy because of his sexual orientation -- they too will have "the burden of proving that there were other reasons for not hiring you" if you choose to bring suit.
Except of course that's not how discrimination law actually works; unless the employer systemically refuses to hire even highly qualified people who are otherwise identical to the straight candidates (this is why they send "testers" into suspect workplaces), the burden remains on the plaintiff -- as it usually does in law, you know -- to prove his case.
There would be a freedom of association issue if the government were requiring you to invite gay people over to your home for dinner, and nobody is saying that you have to socialize with your gay co-workers (or any of your other co-workers) if you don't want to. Nobody is telling any company's management that they have to invite gay people over for dinner or socialize with them. But that's not the same as saying that a business whose business decisions ultimately impact the entire community can do as it pleases without regard for the entire community. We don't allow companies to poison the environment for everybody by dumping toxic waste, and we don't allow companies to poison the economic health of a community by arbitrarily shutting out entire segments of the population from the economic life of the community.
If you don't want me to come over to your house for dinner I'll survive. But if I can't find a job because of some innate characteristic that has no relevance to my ability to contribute, then not only do I suffer but so does the rest of society. I'm more likely to require government services; I'm more likely to commit crimes; I'm less likely to pay taxes. Indirectly, discrimination harms the entire society, so yes, it damn well is society's business if companies are shutting out entire segments of the population.
If only immutable characteristics like race should be protected from discrimination, why do we protect people from being discriminated against based on their religion? I mean, if you're going to be the kind of freak who goes against common social mores by, say, being an Orthodox Jewish woman who covers her hair, refuses to eat anything except kosher food and has to be home by sundown on Friday, why shouldn't employers discriminate against you?
If you have freedom of association, yes.
Insofar as human rights include freedom association, and insofar as human rights are protected by the Constitution --- why can't MTV refuse to hire straights?
How can one have any rights whatsoever, if one cannot associate freely.
I can't cheer that.
I'm interested in how you would expect homosexuals to be "discreet." For example, there's a blood drive at your workplace and everyone is strongly encouraged to contribute. Someone asks a male coworker why he hasn't contributed yet. Should he tell the truth and say that as a gay man he is ineligible to donate blood under the FDA's regulations? Or should he "discreetly" lie and on the spur of the moment come up with some excuse like having anemia? (which may not be plausible to his cowoker)
Or he's filling out the forms for benefits and the workplace asks if he has any dependents. Why yes, he has a same-sex partner and two kids. Human resources notices that he wants benefits for the kids but hasn't mentioned a spouse, and asks him, "Oh, are you a single parent?" No. "So your wife has her own coverage? because you know we don't require an additional payment, so it won't cost you more to cover her." Again, does he lie and say "Yes, she has her own coverage," or does he tell the truth and say, "I have more like a husband than a wife"?
The nature of work today is that it is a social environment. It provides benefits, it requests that you do more than just work there. In certain careers, such as law, failing to build relationships is detrimental to job advancement. It can be quite difficult to build good relationships on a foundation of lies.
There isn't any, at least by conventional measures of discrimination. Gay Americans are more economically successful than straights, on average.
In all of the examples you cite, the law requires discretion.
So what would an employer do? If ENDA protected people with confused "gender identities" an employer who avoided hiring people who presented customer-frightening appearances would open himself to an ENDA lawsuit, which he would then lose, since the court would have no way to distinguish between an employer's entirely proper distaste for people of strange and frightening aspect and some improper (under ENDA) distaste for people with gender-identity issues.
Things would be bad enough should the current version of ENDA become law. ENDA would make it nearly impossible to fire anyone with a colorable claim to being a homosexual, because courts would be unable to distinguish between firing someone for poor performance and firing someone for reasons of prejudice. (This is already the situation with racial-discrimination claims, which (as anyone who has ever worked a supervisory job in America knows) almost perfectly deter the legitimate discipline of melanin-rich white-collar employees).
To extend ENDA's protection to people who affect strange and frightening appearances would be like imposing a huge "tax lottery" on American businesses. Any small business to which a person who affected a strange and frightening appearance applied would be hit with, say, a 25% gross receipts ENDA tax, from which its competitor down the block-- which by chance hadn't had any people with strange and frightening appearances apply for jobs-- would be exempt. That is a recipe for disaster.
I know what you-all will write back. You'll write: employers used to claim that their customers preferred to deal with white employees, and we've taught everyone better now, so we can do the same with people who present strange and frightening appearances.
Well, if you're going to write that, please explain why protecting people with the immutable characteristic of race means we have to protect people whose strange and frightening appearance is entirely voluntary (and generally constitutes a deliberate attack on common social mores). If you can come up with a better answer than "I sort of approve of people who present strange and frightening appearances so I want to use the heavy hand of government to force everyone to agree with me (or at least behave as if they did)," I'll be impressed.
Those arguments about "freedom of association" must apply equally to race, yes? Are many commentors in effect advocating that the Civil Rights act of 1964 was Unconstitutional? That keeping a certain race as an underclass was nor merely constitutinally permitted, but <i>protected</i>?
While homosexuals do not appear to be an economic underclass, if you wish to advocate against one such regulation, you must advocate against them all.
Those arguments about "freedom of association" must apply equally to race, yes? Are many commentors in effect advocating that the Civil Rights act of 1964 was Unconstitutional? That keeping a certain race as an underclass was nor merely constitutinally permitted, but protected?
While homosexuals do not appear to be an economic underclass, if you wish to advocate against one such regulation, you must advocate against them all.
Er, a group's economic success isn't necessarily a good way to tell whether they are being discriminated against. Minority Jews almost everywhere have historically been more economically successful on average than the majority group. Are you going to claim that means they weren't being discriminated against?
Now that you've reposted, care to reply to the comment I posted to you before your post was redacted?
Dating is an economic action. Economic and social rights cannot be separated. Every social act is an economic act, and every economic act is a social act. Let's not forget that economics is a social science, and perhaps the only rigorous one at that.
Selecting a business partner is every bit as important and personal, and yes --- even intimate --- as deciding who to ask out on a date.
How does the law require discretion? My fiance isn't supposed to tell the folks in HR that he will soon have a wife he wants to put on his health insurance coverage? Are they supposed to read his mind, or pick up the hint when he goes on the honeymoon?
Er, if you think dating and being employed are equally "intimate," I will refrain from further discussing the point for fear of finding out what you do for a job or what you do on dates. I have had several employers and I don't consider myself to have had an intimate relationship with them.
You last claim would be true if we were constructing a mathematical theory in a formal language. But we aren't.
Race has a special history in America. A terrible war was fought over it, eradicating the lives of one third of men aged fifteen to forty. Political question are practical, not theoretical. The desire for consistency must sometimes bend to exigency, in particular to a terrible history.
But you are correct. Freedom of association must include race. However, there is one, debatable distinction here: race is not a behavior, homosexuality is.
It seems reasonable, on that ground alone, that the law treat race and sexual behavior differently.
I take it as patently absurd that a law will ban discrimination on the basis of unobservable preferences. It's ridiculous.
But let's take you at your word. Then clearly there is no need for this legislation. No one can determine what you find attractive without observing your behavior.
As for your religious freedom objection, it is overblown. Perhaps the most ridiculous point made in yesterday's debate by Rep. Souder is that ENDA will force a Christian business owner to violate his religious beliefs against homosexuality. That would be true if ENDA compelled employers to engage in gay sex, which it obviously does not do. All ENDA requires is that employers mind their own business as to whether OTHER PEOPLE conform to the employer's faith-based objections to gay sex. ENDA poses no greater risk to religious freedom than Title VII's ban on anti-Semitic employment discrimination does. Title VII requires that you employ qualified Jews, not that you become one. Likewise, ENDA requires that you employ qualified gays, not that you become one. The claim that it violates one religious freedom to have to associate with other people who have different religious views - either on the divinity of Jesus or the morality of homosexuality - is too extravagant to merit accommodation outside the home, church, or other purely private space.
'nother Anonymous, the only response that your bigoted ravings merit is the following: [silence].
Skyler, section 3(a)(8) of ENDA defines sexual orietation as "homosexuality, heterosexuality, or bisexuality," so it prohibits discrimination either in favor of or against gay people or in favor of or against straight people. Moreover, unlike Title VII and other federal employment discrimination laws, section 4(f) of ENDA explicitly bans even voluntary affirmative action or preferential treatment based on sexual orientation.
Homosexuality is actually more than just about "behavior"; almost everyone who has studied the phenomenon agree that it involves both behavior and unchosen, perhaps immutable orientation.
The law doesn't protect just "race" as a civil right, but color, ethnic origin, gender, religion, pregnancy, age and disability. Whatever "choice" involved in being homosexual, it is far less of a choice than "religion" which is entirely chosen and entirely mutable. Given what's already protected under civil rights legislation, sexual orientation need not make any kind of near perfect analogy to "race" to qualify for the list.
People should be hired based on the content of their character, not the color of their skin. The government has no business telling any employer whom they should or should not hire. That they have done so for a number of decades now does not make it right.
Good point. Here in southern Arizona, we had Rep. Kolbe, a conservative republican, elected to the House for many, many years. Re-elected several times after he came out of the proverbial closet. And even before then, as one GOP friend noted, his orientation was the worst-kept secret in the state. Everybody knew and nobody much cared.
I won't give details, but one personal friend was a conservative, openly gay, and wound up in very high rank in the legislature of a rocky mountain state, and is now in DC at a high position under a republican administration. Again, he was a bright and hardworking guy, everybody knew and nobody cared.
In both cases I think a particularly western custom had an impact. What a man does on his own land, as it were, is his own business.
Well...let's just put it this way. You don't need to observe what Richard Simmon or Liberace do in bed to know they are/were gay. So if by "behavior" you mean simply walking into a room and saying "Hello" I agree with you. And yes, I realize or should stress there are just as many "Rock Hudson" types of gays as there are "Richard Simmons" types and everything in between.
Yeah, right. Like there will be lawsuits from people claiming to be discriminated against for not being homosexual. For every time that happens, there will be a thousand suits in the other direction, and this is in fact the intent of the legislation. Your argument is absurd on its face.
Yet, the only way to determine one's orientation is to observe behavior. The origins of the behavior are not relevant. Many behaviors have origins in "immutable orientations." I see no reason one can't legitimately choose to avoid association with a philanderer, nor why a company can't make the same choice. And certainly the male urge to procreate is an "immutable orientation." It's not relevant. All we really know is behavior.
The reply is obvious and easy: two wrongs don't make a right.
Look at it this way. Suppose there were as many people in this country with moral objections to liking (and eating) chocolate as there currently are people with moral objections to same-sex attraction and behavior. Suppose that as a result, people who like chocolate had to hide that fact or risk losing their jobs, and at some point chocolate lovers said that enough is enough and lobbied Congress to ban anti-chocolate discrimination. The principle would be the same: It's regrettable that we actually need laws against such silly behavior by employers, but in point of fact we do, so let's pass it. There's no reason loving chocolate should keep someone out of a job.
The bottom line is we pass laws to protect people who need protection. In this country there is no systematic discrimination against people who like chocolate, so there's no need to pass legal protections for them. There is systematic discrimination against gays. If you don't think there is, you haven't been paying attention.
He'd also need to eliminate protections for light-skinned blacks. Imagine the nerve of them! Refusing to pretend to be white.
And, of course, he also won't mind repealing the word "religion" as used in Title VII, because you can't tell what a person's religion is unless they "flaunt" it in your face.
Ditto for many disabilities - or is Alcyoneus able to sniff out a coworker's diseases?
Alcyoneus stop trying to make your objection to ENDA sound principled. Please have the guts to just say you just loathe gay people. Your arguments don't conceal that anyway. They just make you sound silly.
And why can't an advertising company choose to avoid economic association with Richard Simmons an the basis of his observable behavior? I can't see one reason.
I suggest you re-read the Comment Policy here. In particular this: "So please, also avoid rants, invective, substantial and repeated exaggeration."
There is no reason to make personal attacks upon me.
I might agree with you if we lived in a perfect libertarian world. But the argument -- "My customers don't want to be around ethnically stereotypical black, or Jewish behavior" doesn't fly, so I don't see why it should fly in this regard.
The reply is obvious and easy: two wrongs don't make a right.
It's not just two wrongs. It's you should repeal Title VII entirely or perhaps rewrite it so the only protected category is "race" and only "race," not gender, religion, ethnic origin, age, disability or pregnancy. If you accept the legitimacy of "the list," there is no good reason for keeping sexual orientation off it.
Second, sure we do -- as long as those "entire segments" aren't defined by one of the classifications in the law. I can be as "arbitrary" as I want, otherwise.That doesn't make any sense. For one thing, not getting one job is not the same thing as not getting any jobs. For another, if you don't get the job, someone else does -- or, to turn it around, if you do get the job, someone else doesn't. So then that person would be the one suffering. And for a third, you not having a job is a harm to you, not "society."
PGofHSM:I think the point is that the only "ought" with hiring people for a private business is that it "ought" to reflect the wishes of the owner of the business. If I want to hire my lazy relatives, or only people from my fraternity, or only people who like baseball as much as I do, or only blacks, men, straight people, or Jews, that may be a bad economic decision, but it "ought" to be my decision; nobody else should decide what criteria I should use.
ChrisO:Because we allegedly live in a free society. The real question is why the government can tell people what criteria to use in running their businesses.
Even if I accept your warrant, this argument fails because gay Americans are more economically successful than straights.
Jews and Asians are also more successful. Does this demand their removal from protection under antidiscrimination laws?
I think there are. I've already commented about the special history of race in America. I'd like to read your response to it. Also, except for race the original list of protected groups is a policy error and abusive of liberty. I can't see why we should compound the error.
Well, it should fly. And since I don't wish to patronize that establishment then I should be free to do shop elsewhere. And thus, smart businessmen will do smart business moves and ignore irrelevent characteristics. I suppose the next step would be congress telling us where we can shop. If they can tell employers how to spend their money, it's not a very big stretch to tell consumers where they can spend theirs.
Next thing you know, we'll be told we can't shop at places that don't have sufficient representation from whatever popular group congress wants to privilege next.
Frankly I don't know of any homosexual that was denied employment or fired because he was homosexual. It just doesn't happen that much. This is a very bad solution in search of a problem. It creates more problems and solves none.
You can only avoid my claims for so long, Jon. It's not helpful to forget my responses.
I've given good reason why race should be treated differently: race has a special history in America and race is not a behavior.
Just like Jews were more economically successful on average than gentiles, even in societies with rampant and open anti-Semitism. So why worry about anti-Semitism with the Jews doing so well for themselves?
I give you the identical reply I gave to Jon in the post just above yours. It's not helpful to forget my responses.
By the way, the best empirical studes we have show that gay and lesbian workers are paid less, on average, than similarly situated straight workers. So your claim of economic privilege is based on a false stereotype.
Kudos for memorizing your right-wing talking points, though.
Zombie Feyman is asserting that if discrimination against gays cannot be Constitutionally outlawed, then if discrimination against blacks cannot be Constitutionally outlawed, that that if and only if discrimination against blacks was not in fact outlawed, blacks would remain an eternal underclass.
That second part is pretty much completely vacuous. There is no reason a priori to believe it's true and there certainly isn't any evidence either. Blacks have advanced, some, since 1964, but less so than other groups (including homosexuals!) with much less vigorous legal protection.
Hurrah, the argument from anecdote. Now tell us how many homosexuals you've asked about suffering discrimination, so we can find out if the n is actually greater than 0. Just as the women you know may not be shouting about whether they've had an abortion, the homosexuals you know may not be shouting about whether they've been discriminated against.
Alcyoneus,
1) If we go on a purely historical basis, it's not "race" that has a special status in America, it's "people who are not Caucasian gentiles." So you should oppose a white man's bringing a race discrimination case, because historically he wasn't discriminated against, and therefore the law shouldn't protect him.
2) Are you seriously going to argue that we don't have a lengthy history of discriminating against women in this country? Even though it took longer to give them the vote than it did for men of color?
Personally, I'd like to see everyone be comfortable hiring gays and voting Republican, but I'm hesitant to enshrine my attitudes into law.
The Constitution protects only two narrow categories of association: association for the purpose of speaking and intimate association. The employment relationship is neither.
Exactly how have homosexuals "advanced" since 1964? This should be pretty fascinating, as I didn't know that surveys were asking people for their sexual orientation and income level in the 1950s.
As for whether businesses will consume their societal taste for discrimination at the expense of rational employment policy, look at the situation of women in Japan. Until the influx of Western employers, women were severely underemployed. Then the Western employers, who had been socialized (partly due to anti-discrimination law) to hire without regard for sex, snapped up the well-educated, competent female employees, and the Japanese companies started having to hire more equally in order to compete.
Unfortunately, there's no sign that foreign companies with more progressive mores were poised to enter the South in 1960, so the law was necessary to counteract the social tendency toward inefficient race discrimination.
I had a mentor in my workplace this past summer. It was relevant to my getting good job assignments to have a good relationship with him and other senior people. None of them invited me to dinner, nor did I expect them to do so. Someone who can't distinguish between the kind of social life that surrounds the modern office (the annual holiday party, etc.) and the kind of social life one appropriately has with friends (talking about whether you should stay with your boyfriend), must be very socially inept. Such a person is subject either to refusing all work-related socializing (thus missing the opportunity to find out about opportunities on an informal basis), or to treating the workplace like her ladies' night out (telling people about her yeast infection). This is why being able to make fine distinctions is important in adult life.
Then to be intellectually consistent, you must, of course, oppose any law that prohibits discrimination on the basis of religious (or for that matter, political/social) beliefs.
Admit it: you oppose workplace protections for gays just because you think it is morally good to fire/disassociate oneself from homosexuals in employment. Immutability does not matter at all, because I can fire green-eyed people at will (although I cannot do this as a pretext to get at a certain race or ethnicity). Similarly, the question of immutability is absurd; your immutability doctrine would have strict scrutiny attach to age, intelligence, etc. when the government is involved; clearly, it does not. You must also, to be intellectually consistent and honest, oppose any federal protection based on religious belief.
Moreover, it can always come up without you observing homosexual behavior. An employer invites employees and significant others to a Christmas party, and a guy brings a male partner. You haven't observed any "homosexual behavior," have you? Because homosexual behavior is sex between members of the same sex, no? But the employer, realizing the guy is gay, fires him in, say, small town Indiana. Your position is that, even if he is a model employee and the only reason he was fired was for being gay, that is unobjectionable.
So you support, I suppose, the right for private employers to terminate any employee for any behavior he finds objectionable? Presumably, unless they were only animated by antigay animus, the Republican conservatives who refused to bring ENDA to the floor all of those years thought the same thing; so why is there no movement to permit religious discrimination? And why, for that matter, was the Religious Freedom Restoration Act implemented by these same conservative Republicans to provide even greater protection for religious behavior, at least when the federal government was involved? Why were all the conservative groups rabidly supporting the RFRA while they now attack ENDA? And it cannot be because ENDA limits religious beliefs, because if that is the case they must, of course, oppose all civil rights laws.
You're no Goldwater, Alcyoneous. You do not have a libertarian shield to hide behind. Just admit you do not support ENDA because you feel that being gay is morally objectionable, you do not support any rights for gays (including privacy rights), and probably because you believe job protections would make them more relaxed, increase the number of out gays and lesbians, and (horror of horrors) lead to greater acceptance of homosexuality.
You can oppose ENDA, but please drop the game of imaginary, "principled" justifications for this opposition.
[1] How can the ENDA be justified under the Constitution? Please don't respond with analogies to the 1964 Civil Rights Act, that's an answer to a different question than the one I'm asking. Which specific Articles and Sections of the Constitution enable the federal government to rightfully enact this legislation? (I can think of a couple of possibilities, but IANAL -- I'd like a good answer, please.)
[2] OK, let's say ENDA passes, is challenged, and is upheld by the Supreme Court as constitutional. What else might the federal government decide is a constitutional intrusion into the affairs of busineses, other groups, or private individuals, based on the same rationale used to justify ENDA? We have the example of the Commerce Clause to warn us that even the most tortured rationalizations can and will be used in justifying the supposed constitutionality of legislation.
My point is that sexual orientation can be a can of worms. Sure, most of the time it isn't. If the law isn't carefully drafted to limit what this term means, the unintended consequences could be disastrous - such as NAMBLA members invoking it to gain access to day care or elementary school positions.
That's not the world we live in. Why don't you focus your attention in helping to bring this about: repealing the gender, pregnancy, ethnic origin, religion, age and disability categories.
That's like asking what is the answer to 2+2? But please don't answer 4. As it stands, the federal civil rights act prohibits discrimination of the basis of race, color, ethic origin, religion, gender, pregnancy, age, and disability. Whatever the constitution basis for this, certainly prohibiting discrimination on the basis of sexual orientation is no different.
Bruce: The statute defines "sexual orientation" as "heterosexuality, homosexual or bisexuality," thereby obviously limiting the scope (just like the ADA, when it was enacted, stated that homosexuality was not a disability). So no problem there. Also, the NAMBLA example is frankly offensive. Anti-gay bigots always bring up the spectre of pedophilia as a scare tactic. It is as tiresome as the allegations made against Jews and the alleged sexual habits (notably, white female rape) made by racists.
As a subsidiary basis, the bill also cites Section 5 of the Fourteenth Amendment.
The portions of the 1964 Civil Rights Act that apply to private entities are unconstitutional and many of its proponents expected those provisions to be struck down by the courts just as they had been with the 1873 Civil Rights Act. Unfortunately, we had a Supreme Court more concerned with reaching outcomes that pleased their liberal consciences rather than followed the Constitution.
Because it's far easier to prevent the passage of an bad law than to repeal a bad law, of course.
Employment lawyers of the world, rejoice.
1. If you are takng a job action for unlawful reasons, don't tell anyone about those reasons.
2. Its easier to get people to resign than for you to fire them.
The clever employer really doesn't care about race or gays because he wants to make money, but he does care about the activists and lawyers who will try to make a buck off him. So, he avoids potential problems. The notion that a law now provides protection is silly. This is another feel good moment.
Your exasperation is baseless. The Congressional Research Service has found that similar laws that already cover more than half of the country's workforce have not produced a significant increase in court cases. Sorry to disappoint.
Yes, that is the state of jurisprudence. It has the unfortunate characteristic of being wrong.
I admit that the law and its current interpretation allow the government to regulate almost all aspects of our economic lives, and therefore almost all aspects of our social lives. It is still an error.
By custom, the 10th Amendment has been abrogated so long that it has no force against the commerce clause. It's still an error.
I lack the respect for precedent that lawyers possess.
The Courts don't protect economic liberty. That's why this must be dealt with as a legislative issue.
I admit that the law will be upheld by courts as constitutional. Those courts will be wrong.
I can't speak for the other fellow. I've encountered all manner of crazy rulings from Courts. This blog has covered some of them. I grant that the law will be considered constitutional by the courts. That doesn't mean they are correct.
You can always say, “I choose not to donate blood.” I think this is a non-problem. In all my years working, I have never been asked about whether I gave blood or not.
If a homosexual has children, he can always include them on his insurance like any other single father, and be discreet about his same-sex domestic partner.
The best figures we have are that 4% of the male population, and 2% of the female population are homosexual. I’m going to guess that half are in the labor force and at least half would prefer to remain discreet. Thus we are talking about something like 1% of the population being affected by this legislation. Since no one as yet can provide any evidence there is a discrimination problem, I can only conclude this legislation deals with a non-problem for a very small number of people. The whole thing sounds like a waste of time for Congress.
As to all these parades of horribles of lawsuits, hiring and so on, currently 20 states have a form of ENDA, and many more cities and counties and other local municipalities. In addition, most of the Fortune 500 companies have a form of ENDA in their HR. Therefore, most commentators have found that half of the entire workforce in the US is covered by some form of non-discrimination of sexual orientation.
If there have been actualy problems with in these places we would have heard about it by now. But all you guys have are speculations and sour grapes.
As for 'being discreet', I have no such intention. If a co-worker asks me what I did over the weekend, I will say something, I went to a musical with my boyfriend, or I volunteered at the gay and lesbian filmfest. If other people can have pictures of their spouses on their desks, I will have pictures of my boyfriend on mine. At the holiday party, if spouses or significant others are invited, I will bring my boyfriend.
in other words, whatever straight people do or talk about, so will I.
Eliot: "The notion that a law now provides protection is silly. This is another feel good moment."
True -- smart employers will always be able to fire whomever they want. But why do you assume all employers are smart? Many are stupid, and that's why they get into trouble. they want to fire a person because the person is black, and they do so. So they get sued. Good riddence to them.
But to say that the protection is silly is baseless. Are all non-discrimination laws sillly? No -- because they send a very strong message that sexual orientation discrimination will not be tolerated, any more than discrimination based on race, religion, sex, age and so on. As time goes on, it sinks in with a new generation, and such cases become rarer and rarer.
And if I were gay, I'd be worried that, like so many other attempts to legislate good intentions, someone will find a way to screw things up for everybody.
Why should he have to be "discreet"? Do you have to be?
Yup -- if you can't argue the facts, or the law, always raise the pedophilia! That's sure to scare everyone, right?
Last time, I checked, sex with minors is a crime. I'm sure, Bruce, you are just as concerned with men having sex with underage women. Sure, you're argument would also mean that all those racial discrimination laws mean that black men can have sex with underage white women, and employers will be *required* to hire those black men, right?
Oh that right. You just want to keep the argument to gay pedophiles. Sorry.
Let's hope the award is enough to retire on, because you may have trouble finding another job after pulling that stunt. And ENDA doesn't offer protection for jerks.
"And if I were gay, I'd be worried that, like so many other attempts to legislate good intentions, someone will find a way to screw things up for everybody."
But you're probably not, so don't worry your pretty head about it.
There are (at least) two problems with ENDA.
One is that it would make the promotion of gay culture national government policy. Of course, it's quite debatable whether that is a good idea, but you should recognize that it is a big deal and promoting gay culture is not clearly within Congress' Constitutional power. (I write "gay culture" rather than homosexuality because, as others have pointed out, ENDA would operate on appearances rather than innate qualities. The more flamboyant the potential complainant, the more protection ENDA would give him, even though an employer might resent his antics rather than his sexual preferences.)
The second is that ENDA would come with very large transaction costs. The purpose of ENDA is to subject business to greater legal risks in (chiefly) employment decisions. By analogy to the effects of the CRA and the CRRA on business, we can expect all of the following: (1) quota hiring; (2) meritless pretextual lawsuits by gay or lesbian employees aggrieved for any reason; (3) chum-in-the-water settlements of such lawsuits; (4) preferential workplace treatment for gays and lesbians thanks to (1) and (2); and strange though it may seem, (5) aversion to hiring gays and lesbians in excess of quota requirements. That last effect will occur because employers will see gays and lesbians as potential lawsuit trouble. They will hire the mandatory 5% (or whatever percentage EEOC sets as the enforcement floor), but then avoid the rest. "No thank you, we've already got enough of your kind."
Also, for what it's worth, many people would dislike employers asking about their sexual preferences. Since it would be impossible to enforce ENDA without such information, EEOC and plaintiff's lawyers would demand it and employers would collect it. (I wonder if employers would be required to visually assess the sexual preferences of applicants who might "decline to state," as they must assess race now?)
The ADA produced a lot of perverse effects. It's likely that ENDA would as well. In the end, the resentment it would naturally provoke might do gays and lesbians more harm than good. It would cost the country a lot to find out.
DC: You really should read the legislation (a link is above in the comments) and the helpful committee report explaining the background.
On the evidence of discrimination against gays in the workplace and the effects of that discrimination (economic and otherwise) a good place to start is the Labor Committee report linked in the original post.
On the quota issue, ENDA Sec. 4(f) specifically states that nothing in the Act shall "require or permit . . . (1) preferential treatment . . . because of sexual orientation . . . or (2) the adoption or implementation . . . of a quota . . . on the basis . . . of sexual orientation."
On the collection of information about employees' sexual orientation, ENDA Sec. 9 specifically forbids the EEOC from collecting or compelling covered entities to collect "statistics on actual or perceived sexual orientation."
I quite agree with all you've written in your post. The social/economic effects of government interventions in private contracting are well-known and are empirically and theoretically verified.
Nevertheless, such facts are unpersuasive to both the courts and the legislature.
I've never advocated taking things "on a purely historical basis." I've claimed that the history of the question can be a practical reason for temporary special treatment under the law.
Why doesn't the Constitution protect freedom of association? Why must employers disregard behavior, like homosexuality, in hiring?
Maybe because the term "freedom of association" doesn't appear in the Constitution?
As for why employers "must disregard behavior like homosexuality" presumably for the same reason why they must disregard behavior, like attending a synagogue or taking insulin.
Where is the evidence that Jews suffer discrimination when they can just change their names and not wear yarmulkes?
For instance, let's say a particular cult has such a conception of male superiority that they are encouraged (indeed obligated) to treat their wives with utter contempt, even physical abuse. I would not hire such a person on account of that practice, and I don't give a rip that the private behavior (behavior that will not even manifest itself in that person's work) is religiously motivated. I won't hire him because I despise him and his behavior. I believe it entirely within my right to refuse employment on that basis.
On the other hand, if an employer refused to hire a Jew because he is simply a Jew, then that seems less to be disgust at the Jew's behavior and more because of his origin. I mean, I've met many Jews who have no belief whatsoever in the religious tenets of Judaism. They're simply Jews because that's what their parents are. In other words, Jewishness seems more an ethnicity than a religion.
Now, I realize there may be exceptions to both of these examples, and I realize the distinction is not always easy to administer, but it seems to me that the standard should be that one can refuse to hire based on behavior that one morally disapproves of (whether religiously motivated or not), but one should not be allowed to refuse to hire based on one's "religion," to the extent his "religions" is a proxy for ethnicity or some other immutable characteristic.
I'll state it more succinctly, to the extent "religion" is a proxy for behavior that one disapproves of, discrimination should be allowed. To the extent "religion" is a proxy for ethnicity or some other immutable characteristic, discrimination should not be allowed.
I personally find homosexual behavior to be immoral. To the extent that one's propensity to desire or engage in homosexual behavior is definitive of someone being a "homosexual" person, I don't care. Likewise, I don't care if one is "a polygamist" by nature, nurture, or otherwise; I won't hire him/her because I disapprove of polygamist behavior.
'Why should he have to be "discreet"? Do you have to be?'
He doesn’t have to be unless he feels that, somehow, if he were not discreet he would suffer. Of course no one has put forth any compelling evidence that homosexuals suffer systematic, widespread invidious discrimination in the workplace.
Having once held security clearance I learned to be discreet about things when necessary. I couldn’t always tell my wife about what I was working on, and didn’t. Having the capacity to simply shut up seems in short supply these days.
No more than prohibiting discrimination based on religion would make the promotion of Jewish culture national goverment policy.
As for your other points, do you seriously think every single workplace currently covered