Nel's New Day

March 27, 2013

End LGBT Job Discrimination

Marriage equality has been the focus of media this week as the U.S. Supreme Court addressed two separate cases about allowing same-sex couples the opportunity for legalized marriage. Fox has started stirring up its audience into a froth, fomenting the fear that a ruling in favor of marriage equality would result in removing Christianity from our country and wiping out all the advantages that religion—primarily Christians—have. But there’s an even scarier thing going on for all LGBT people.

I want all the straight people in this country to consider what would happen if they were to be fired because they are—gasp!—heterosexual. Little do they know that this could happen in 29 states. It most likely won’t because straight people are in the majority in the United States, but their employers could legally use this excuse. That’s because Congress consistently refuses to pass the Employment Non-Discrimination Act (ENDA).

Passing ENDA would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by civilian, nonreligious employers with at least 15 employees. Introduced in every Congress since 1994 except for the 109th Congress from 2004-6, the concept of ENDA has failed since 1974. A version of the law failed in the Senate by a single vote in 1996. Even a Democratic Congress in 2006 couldn’t pass it, even after ENDA dropped protection for transgender people, perhaps because George W. Bush threatened to veto the measure. Even Rep. Paul Ryan (R-WI) voted for ENDA in 2007.

Following Democratic gains in 2008, Rep. Barney Frank (D-MA) and Sen. Jeff Merkley (D-OR) introduced ENDA that included transgender people. Failing in that Congress, the two men introduced the bill again in 2011 when a Senate committee held a hearing on the measure, the first such hearing to include testimony by a transgender witness.

Courts cannot protect LGBT employees fired because of their sexual orientation and gender identify because LGBT people are not classified as a “suspect class,” a group with a set of criteria indicating that they are probably the subject of discrimination. ENDA supporters argue that the Constitution guarantees equal protection and due process for all. The American Psychology Association (APA) argues the homosexuality is a personal identity and not a “choice” and that all employees should be judged by the quality of their work performance instead of completely unrelated factors.

Conservative Christians believe that there is no discrimination against LGBT people and that ENDA would negatively impact religious organizations. The Traditional Values Coalition (TVC), are afraid that schools would be required to hire transgender teachers.

In the current 113th Congress, with Frank no longer in the House, Rep. Jared Polis (D-CO) plans to be the lead author of the next ENDA. One source stated that the new bill may have changes related to religious exemption and disparate impact to make the legislation’s protections stronger for LGBT workers than previously written. ENDA has previously included a strong religious exemption. In the most recent version of the bill, Section 6 provided an exemption for religious organizations and businesses that were also exempt under Title VII of the Civil Rights Acts of 1964.

Three weeks ago, the Family Research Council sent out a fundraising email warning its recipients that this “dangerous” and “totalitarian” bill is possible. Tony Perkins explained that ENDA would “give special rights to men and women who engage in homosexual behavior.” To far-right Christians, having a job is an example of “special rights.”

A public opinion poll from 2011 shows that almost three-fourths of voters (73 percent) support protecting LGBT people from workplace discrimination. Even two-thirds of Republicans supported nondiscrimination laws. Even Catholics (74 percent) and seniors (61 percent) are in favor of workplace protections for LGBT people. Even voters who describe themselves as being unfavorable toward LGBT people support nondiscrimination by 50 percent.

Yet 90 percent of these voters don’t understand that that these protections are not in place: they think a federal law protects LGBT people from workplace discrimination. ENDA affects far more people than equality of marriage and of lesbians and gays in the military, but the bill is largely ignored by most people, including President Obama.

There’s a 99-percent chance that the bill won’t even see the light of day in the current, Republican-dominated House although Ryan claims that the GOP will support ENDA—sort of. The GOP even strongly opposes universal background checks for gun buyers although 91 percent of the people support this. But if any heterosexuals are fired because of “sexual orientation,” they might want to consider support of ENDA.

As columnist Ruth Marcus wrote, “The movement for marriage equality is enormously important; its trajectory toward success is nothing short of astonishing. Yet no American should be asked to choose between the right to marry and the right to work. Every American, regardless of sexual orientation, is entitled to both.”

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