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Barney Frank's ENDA:

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.

Joshua:
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.

Ditto here. Also, best of luck to Rep. Frank in another of his Congressional endeavors, namely trying to get UIGEA repealed.
11.8.2007 6:53pm
John (mail):
Could anybody give us a link to what the bill actually says?

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.
11.8.2007 7:30pm
Frog Leg (mail):
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 who they love.

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.
11.8.2007 7:42pm
Cornellian (mail):
Frog,

I think he was referring to the lack of state legislation in those states, such that federal legislation would be their only protection.
11.8.2007 7:45pm
Jon Rowe (mail) (www):
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.

Certainly not everyone or even most folks there. But how about quite a few?
11.8.2007 7:57pm
PGofHSM (mail) (www):
I'm half-wondering if Rep. McCrery's vote was by mistake. He's not been particularly friendly to gay rights in the past, and he was voting with the Republicans to adjourn before there could be a vote, and also to kick it back to committee. It's really weird (almost as weird as the Post's letting people check votes by the Congressperson's astrological sign). The yeses and nos below are in the order of McCrery's vote, the Republicans' preference, the Democrats' preference:

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.
11.8.2007 7:57pm
Frog Leg (mail):
Cornellian, many non-coastal states have anti-discrimation legislation based on sexual orientation. So I think there is something else implied here.
11.8.2007 8:00pm
Jon Rowe (mail) (www):
PGofHSM,

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.
11.8.2007 8:11pm
jrose:
Frog,

Only 4 midwestern, 1 mountain and 0 southern states have private-employer anti-discrimination legislation based on sexual orientation.
11.8.2007 8:11pm
Hans Bader (mail):
Does anyone see an irony here in ENDA?

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.
11.8.2007 8:32pm
happylee:
Bravo, the miserable experience of being an employer in the United States will soon be even more miserable. My employment law buddies will be buying new Audis. Wohoo!

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.
11.8.2007 8:38pm
Steve:
Congress itself discriminates based on sexual orientation.

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.
11.8.2007 8:50pm
U222:
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.

I agree with you 100%, happylee.
11.8.2007 8:59pm
Alcyoneus (mail):
I've asked this question several times.

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?
11.8.2007 9:07pm
'nother Anonymous:
[deleted---keep it civil, avoid name-calling]
11.8.2007 9:17pm
Skyler (mail) (www):
So much for having a free country. What a sad day it will be if this ever is made into law. We will have made being homosexual a benefit when it comes to employment. I guess the trick to job interviews is to effect a lisp and wear lipstick if you're a man, because then the employer will have the burden of proving that there were other reasons for not hiring you.

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.
11.8.2007 9:17pm
PGofHSM (mail) (www):
Skyler,

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.
11.8.2007 9:24pm
A. Zarkov (mail):
How necessary is this bill? Where is the evidence that homosexuals suffer systematic and widespread invidious discrimination in the workplace? I mean today. If there is a problem, then why is it not curable by simply being discreet about it?
11.8.2007 9:25pm
NI:
Alcyoneus, I'm a quasi-libertarian who has reservations about anti-discrimination laws in general, though if we are going to have anti-discrimination laws I can think of no good reason not to protect sexual orientation. But I don't think there's a freedom of association issue here.

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.
11.8.2007 9:26pm
PGofHSM (mail) (www):
'nother Anonymous,

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?
11.8.2007 9:27pm
MLS (www):
It is interesting that the House Rules do not prohibit discrimination based on sexual orientation. If the House wants to experiment with a federal ban on discrimination against gays, why doesn't it start with itself? Why start with the private sector?
11.8.2007 9:28pm
Alcyoneus (mail):

Skyler asked, "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?"


If you have freedom of association, yes.


Skyler wrote, "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.


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.
11.8.2007 9:30pm
Brett Bellmore:
It's a wonderful cause, but I can't help but agree with a few of the posters above, that this is actually a defeat for the negative liberty of freedom of association. Yet another bit of the space between what we should do, and are forced to do, what we shouldn't do, and are compelled to refrain from, is being torn away. And we take one more step closer to the day when all that's not mandatory is forbidden.

I can't cheer that.
11.8.2007 9:32pm
PGofHSM (mail) (www):
A. Zarkov,

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.
11.8.2007 9:35pm
Alcyoneus (mail):

A. Zarkov wrote, "Where is the evidence that homosexuals suffer systematic and widespread invidious discrimination in the workplace?"


There isn't any, at least by conventional measures of discrimination. Gay Americans are more economically successful than straights, on average.
11.8.2007 9:35pm
PGofHSM (mail) (www):
I guess I'm really puzzled that people who oppose Title VII, the ADA and now ENDA think that their right of association is really important when it comes to hiring people. Hiring people ought to be a primarily economic consideration. Is this person going to make a good employee? If not, don't hire her. If so, by all means hire her. But don't put it in terms of association, like "Would I want to go on a date with her?" Some of my coworkers I wouldn't want as friends, and some of my friends I wouldn't want as coworkers. (My fiance would probably hate to have me as an employee.) But luckily you get to choose your friends based on with whom you wish to associate, and you choose your employees based on who will do a good job for you. There are some social aspects to the workplace; a person who uses the f-word in casual conversation with customers, for example, is inherently a bad employee even if otherwise excellent at his job. But a person who, like other employees, keeps a photo of his partner on his desk is not a bad employee simply because his partner happens to be of the same sex.
11.8.2007 9:40pm
Alcyoneus (mail):

PGofHSM asked, "I'm interested in how you would expect homosexuals to be 'discreet.' For example..."


In all of the examples you cite, the law requires discretion.
11.8.2007 9:40pm
ChrisO (mail):
The real question is why employers can discriminate against people for anything except job performance.
11.8.2007 9:40pm
'nother Anonymous:
One problem with including folks with "gender identity" issues (transsexuals, crossdressers, etc) as an ENDA category is that many such present such strange appearances that they frighten many people. Such persons apparently desire and intend to shock people around them (presumably because they can't think of any polite way to attract the attention they crave).

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.
11.8.2007 9:41pm
Zombie Richard Feynman (mail) (www):
I must echo NI here.

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.
11.8.2007 9:42pm
Zombie Richard Feynman (mail) (www):
I must echo NI here.

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.
11.8.2007 9:42pm
PGofHSM (mail) (www):
There isn't any, at least by conventional measures of discrimination. Gay Americans are more economically successful than straights, on average.

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?
11.8.2007 9:42pm
PGofHSM (mail) (www):
'nother Anonymous,

Now that you've reposted, care to reply to the comment I posted to you before your post was redacted?
11.8.2007 9:44pm
Alcyoneus (mail):
PGofHSM wrote, "Hiring people ought to be a primarily economic consideration. Is this person going to make a good employee? If not, don't hire her. If so, by all means hire her. But don't put it in terms of association, like "Would I want to go on a date with her?"

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.
11.8.2007 9:45pm
PGofHSM (mail) (www):
Alcyoneus,

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?
11.8.2007 9:45pm
Skyler (mail) (www):
Alcyoneus, you're quoting the wrong person. I didn't say any of those things.
11.8.2007 9:46pm
PGofHSM (mail) (www):
Alcyoneus,

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.
11.8.2007 9:48pm
Alcyoneus (mail):
Zombie Richard Feynman wrote, "Those arguments about "freedom of association" must apply equally to race, yes?...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."

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.
11.8.2007 9:51pm
Alcyoneus (mail):
Apologies Skyler. Please everyone, note that I misquoted Skyler.
11.8.2007 9:52pm
NI:
Alceoneus, homosexuality is not a behavior any more than heterosexuality is a behavior. Rather, it's a status; it describes what you find sexually attractive. And if you think there isn't a special history in this country of anti-gay discrimination you haven't been paying attention.
11.8.2007 9:54pm
Alcyoneus (mail):

NI wrote, "homosexuality is not a behavior any more than heterosexuality is a behavior. Rather, it's a status; it describes what you find sexually attractive."


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.
11.8.2007 9:58pm
Stephen Clark (mail) (www):
Hans Bader, ENDA applies to public and private employers. Section 3(a)(4)(B)(C) &(D) define covered "employer" to include the federal government and Congress. Except for the armed forces and religious institutions, ENDA is attempting to evenhandedly ban employment discrimination based on sexual orientation by public and private entities. (I have no interest in addressing your ideological objections to employment discrimination laws generally, damage awards, or harassment law.)

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.
11.8.2007 10:00pm
Jon Rowe (mail) (www):
However, there is one, debatable distinction here: race is not a behavior, homosexuality is.

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.
11.8.2007 10:02pm
Skyler (mail) (www):
Actually, there is a very good argument that the Civil Rights Act was unconstitutional insofar as it has been used to justify discrimination.

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.
11.8.2007 10:04pm
Dave Hardy (mail) (www):
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.

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.
11.8.2007 10:05pm
Jon Rowe (mail) (www):
No one can determine what you find attractive without observing your behavior.

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.
11.8.2007 10:06pm
Skyler (mail) (www):
Stephen Clark,

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.
11.8.2007 10:07pm
Alcyoneus (mail):

Jon Rowe wrote, "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."


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.


Jon Rowe wrote, "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."


The reply is obvious and easy: two wrongs don't make a right.
11.8.2007 10:09pm
NI:
Alcyoneus, yes there is a need for it because gay people sometimes still get fired or denied jobs because of their sexual orientation. The reason the law ought to ban discrimination based on unobservable preferences is because some employers discriminate based on unobservable preferences, either real or imagined.

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.
11.8.2007 10:11pm
Stephen Clark (mail) (www):
I suppose Alcyoneus won't mind if we amend Title VII to eliminate rules that protect African Americans from employment discrimination for having an interracial relationship, engaging in a civil rights protest, listening to hip-hop, living in a predominantly black neighborhood, having black friends, joining a black church, or having a criminal record - all of which is pure volitional conduct.

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.
11.8.2007 10:12pm
Alcyoneus (mail):

Jon Rowe wrote, "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."


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.
11.8.2007 10:12pm
Alcyoneus (mail):

Stephen Clark wrote, "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."


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.
11.8.2007 10:14pm
NI:
"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." For the same reasons I already gave -- if Richard Simmons can't find a job, he's more likely to end up on the public dole, in jail, or otherwise engaging in anti-social behavior. Discriminating against gay people doesn't just hurt gay people.
11.8.2007 10:16pm
Jon Rowe (mail) (www):
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 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.
11.8.2007 10:17pm
David M. Nieporent (www):
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.
First, "poison the economic health of a community" is basically gibberish; it ought to be a violation of the Geneva Conventions for the way it tortures the metaphor.

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.
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.
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 guess I'm really puzzled that people who oppose Title VII, the ADA and now ENDA think that their right of association is really important when it comes to hiring people. Hiring people ought to be a primarily economic consideration.
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:
The real question is why employers can discriminate against people for anything except job performance.
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.
11.8.2007 10:19pm
Alcyoneus (mail):

NI wrote, "For the same reasons I already gave -- if Richard Simmons can't find a job, he's more likely to end up on the public dole, in jail, or otherwise engaging in anti-social behavior. Discriminating against gay people doesn't just hurt gay people."


Even if I accept your warrant, this argument fails because gay Americans are more economically successful than straights.
11.8.2007 10:20pm
Stephen Clark (mail) (www):
I'd add one observation to Dale's original post. The ideologues at United ENDA should be terminally embarrassed that they took an adamant position (kill the bill) that was so extreme that only 7 out of 435 House members agreed with it. Heck, not even Dennis Kucinich voted to kill the bill. If you're further to the left than Dennis Kucinich, suffice it to say you're less that irrelevant.
11.8.2007 10:21pm
Jon Rowe (mail) (www):
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?
11.8.2007 10:21pm
Alcyoneus (mail):

Jon Rowe wrote, "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."


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.
11.8.2007 10:23pm
Skyler (mail) (www):

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.


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.
11.8.2007 10:25pm
Alcyoneus (mail):

Jon Rowe, "Jews and Asians are also more successful. Does this demand their removal from protection under antidiscrimination laws?"


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.
11.8.2007 10:25pm
PGofHSM (mail) (www):
"Even if I accept your warrant, this argument fails because gay Americans are more economically successful than straights."

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?
11.8.2007 10:26pm
Alcyoneus (mail):

PGofHSM wrote, "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.
11.8.2007 10:27pm
Stephen Clark (mail) (www):
Alcyoneus, those who can't respond on the merits whine about personal attacks.

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.
11.8.2007 10:27pm
Malvolio:
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 [constitutionally] permitted, but protected?
Can you say "fallacy of the excluding middle"? I knew you could.

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.
11.8.2007 10:30pm
PGofHSM (mail) (www):
Skyler,
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?
11.8.2007 10:31pm
Ghost of Van Gogh:
I can't decide what's funnier - that the people who wrote, "Nobody is telling any company's management that they have to invite gay people over for dinner or socialize with them" and "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" are arguing the same position, or the apparent lack of irony in the statement, "All ENDA requires is that employers mind their own business"

Personally, I'd like to see everyone be comfortable hiring gays and voting Republican, but I'm hesitant to enshrine my attitudes into law.
11.8.2007 10:31pm
Stephen Clark (mail) (www):
The Constitution protects no "freedom of association" in the commercial sphere. Chief Justice Rehnquist wrote the opinion of the Court establishing that principle.

The Constitution protects only two narrow categories of association: association for the purpose of speaking and intimate association. The employment relationship is neither.
11.8.2007 10:32pm
PGofHSM (mail) (www):
Malvolio,
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.
11.8.2007 10:35pm
Skyler (mail) (www):
Rehnquist was wrong.
11.8.2007 10:37pm
PGofHSM (mail) (www):
Ghost of van Gogh,

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.
11.8.2007 10:39pm
Alec:
Alcyoneous:

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.
11.8.2007 10:53pm
Mike G in Corvallis (mail):
I can't help wondering two things ...

[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.
11.8.2007 10:54pm
Bruce Hayden (mail) (www):
Maybe some of the details are covered by the references that Dale gave, but my problem is not with sexual orientation, per se, but rather with some of the permutations thereof. For example, what exactly is "sexual orientation"? Is it strictly limited to those who have relationships with those of the same sex or gender? Or does it also include NAMBLA? I am reminded of a club in Scottsdale last spring or so that banned some transvestites from the club because they had not yet undergone sexual reorientation surgery, but were insisting on using the women's room. The female patrons were freaked out by sharing their restroom with a bunch of still fairly masculine guys dressed as women.

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.
11.8.2007 10:57pm
Jon Rowe (mail) (www):
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.

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.
11.8.2007 10:58pm
Jon Rowe (mail) (www):
[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.

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.
11.8.2007 11:02pm
Stephen Clark (mail) (www):
Bruce Hayden, relax. The bill expressly defines sexual orientation as homosexuality, heterosexuality, or bisexuality. Those terms refer to the sex of one's partners, not the age of one's partners. The only possible application it could have to a case of underage sex would be in a situation where an employer fires a employee for gay sex with a child but does not fire an employee for straight sex with a child. I assume you aren't only concerned with man-boy sex but would be equally concerned with man-girl or woman-boy sex. ENDA would simply require that they all be treated the same - however harshly.
11.8.2007 11:03pm
Alec:
Mike: Presumably the commerce clause, which justifies all the other antidiscrimination laws.

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.
11.8.2007 11:09pm
Stephen Clark (mail) (www):
Jon Rowe, it is the Commerce Clause (Art. I, sec. 8, clause 3), the same constitutional basis as federal laws that regulate collective bargaining, union rights, minimum wages, maximum hours, child labor, workplace health and safety, and other kinds of employment discrimination. ENDA does not apply to employers with fewer than 15 employees and only to employers "engaged in an industry affecting commerce" - both are standard employment-law criteria in laws that have been repeatedly upheld by the Supreme Court against constitutional attack.

As a subsidiary basis, the bill also cites Section 5 of the Fourteenth Amendment.
11.8.2007 11:11pm
Stephen Clark (mail) (www):
Sorry, Jon. I meant Mike.
11.8.2007 11:12pm
Jay Myers:
Zombie Richard Feynman:

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?

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.
11.8.2007 11:17pm
Alcyoneus (mail):

Jon Rowe wrote, "Why don't you focus your attention in helping to bring this about: repealing the gender, pregnancy, ethnic origin, religion, age and disability categories."


Because it's far easier to prevent the passage of an bad law than to repeal a bad law, of course.
11.8.2007 11:18pm
MLS (www):
So if the law passes it will be illegal for private businesses, states and most federal government employers to discriminate against gays, but it will be legal for religious organizations to discriminate and it will be mandatory for the military to do so. There can be no disparate impact claims, except that it will be illegal to discriminate against people who are not married or eligible to marry in states that forbid gay marriage, except that it is ok to discriminate against people who are not married for purposes of employee benefits.

Employment lawyers of the world, rejoice.
11.8.2007 11:19pm
Stephen Clark (mail) (www):
No, Jay. First, you're confusing the public accommodations provisions of CRA '64 (Title II) with the employment provisions (Title VII). Second, you're failing to recognize that the constitutionality of Title VII is fully consistent with the Supreme Court's Commerce Clause jurisprudence since 1937, when it upheld the National Labor Relations Act of 1935. The only justice to question those decisions, ironically, is Clarence Thomas. Not even Antonin Scalia does.
11.8.2007 11:24pm
SP:
So, can someone actually cite examples of this kind of discrimination? I have a feeling this behavior will become suddenly "prevalent" once a monetary remedy appears.
11.8.2007 11:31pm
Elliot123 (mail):
This is all very nice. However, in the real world the practical and clever employer will still do whatever he wants for whatever reason he wants. All these laws boil down to two rules for the employer:

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.
11.8.2007 11:31pm
Stephen Clark (mail) (www):
MLS, the unavailability of disparate impact theory reduces the number of potential claim, and the marriage provision was deleted by a floor amendment.

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.
11.8.2007 11:32pm
Stephen Clark (mail) (www):
SP, more than half the nation's workforce is already covered by similar laws, so we already have a pretty good idea what this law would do.
11.8.2007 11:34pm
Alcyoneus (mail):

Stephe clark wrote, "The Constitution protects no "freedom of association" in the commercial sphere. Chief Justice Rehnquist wrote the opinion of the Court establishing that principle.

The Constitution protects only two narrow categories of association: association for the purpose of speaking and intimate association. The employment relationship is neither."


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.
11.8.2007 11:36pm
Alcyoneus (mail):

Stephen Clark wrote, "you're failing to recognize that the constitutionality of Title VII is fully consistent with the Supreme Court's Commerce Clause jurisprudence since 1937, when it upheld the National Labor Relations Act of 1935. The only justice to question those decisions, ironically, is Clarence Thomas. Not even Antonin Scalia does."


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.
11.8.2007 11:44pm
A. Zarkov (mail):
PGofHSM:

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.
11.8.2007 11:46pm
glangston (mail):
I haven't read the provisions but I'm wondering if they've settled the issue of labeling restrooms, "men" and "women" and whether this is going to be considered discriminatory in the future.
11.8.2007 11:50pm
Randy R. (mail):
This thread is really pretty funny. Half of the people say that gays aren't discriminated against, so why the need for ENDA? The OTHER half says that they should and would discriminate against gays because its' their right to free association. So -- first half, please meet the second half. That should answer your question.

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.
11.9.2007 12:12am
Mike G in Corvallis (mail):
If I were straight, I'd be wondering how I could twist the obviously benign intent of this law into a way to make a boatload of money by applying it to situations that it was never expected to cover. (The story of the two straight males seeking to marry each other for tax purposes is one example.)

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.
11.9.2007 12:12am
Grover Gardner (mail):
"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."

Why should he have to be "discreet"? Do you have to be?
11.9.2007 12:14am
Randy R. (mail):
Bruce: "such as NAMBLA members invoking it to gain access to day care or elementary school positions."

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.
11.9.2007 12:20am
Grover Gardner (mail):
"If I were straight, I'd be wondering how I could twist the obviously benign intent of this law into a way to make a boatload of money by applying it to situations that it was never expected to cover."

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.
11.9.2007 12:21am
Mark Seecof:
Stephen Clark, you should do more research; you seem to be propagating a lot of untruths. For example, while gay men seem to earn somewhat less than straight men (chiefly, it appears, because they work less), lesbian women earn somewhat more than straight women (probably because they work more).

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."
11.9.2007 12:31am
Alcyoneus (mail):

Mark Seecof wrote, "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."


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.
11.9.2007 12:40am
Alcyoneus (mail):

PGofHSM wrote, "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?"


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.
11.9.2007 12:49am
Cornellian (mail):

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.
11.9.2007 12:55am
Cornellian (mail):
Where is the evidence that homosexuals suffer systematic and widespread invidious discrimination in the workplace? I mean today. If there is a problem, then why is it not curable by simply being discreet about it?


Where is the evidence that Jews suffer discrimination when they can just change their names and not wear yarmulkes?
11.9.2007 12:56am
JLV:
I buy the argument the argument that if the distinction between race and homosexuality is immutable characteristic vs. behavior, then we should be able to discriminate on the basis of religion as well. That is, if one objects to behavior that is characteristic of the religion.

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.
11.9.2007 1:05am
A. Zarkov (mail):
Grover Gardener:

'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.
11.9.2007 1:06am
Cornellian (mail):
One [problem with ENDA] is that it would make the promotion of gay culture national government policy.

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 by Title VII has a workforce with a racial composition that completely mirrors the surrounding community? Gender composition? Religious composition? How do you think those workplaces manage to avoid a blizzard of lawsuits? Consider the possibility that banning discrimation does not result in a de facto quota as you seem to think.
11.9.2007 1:10am
Cornellian (mail):
Zarkov,

Here's just one of a bazillion examples readily available to anyone with access to Google and a willingness to look.

Harry Kay worked for over seven years as an analyst
for Independent Blue Cross in eastern Pennsylvania.
Kay v. Independence Blue Cross, 2003 WL
21197289 **1-2, 91 Fair Empl.Prac.Cas. (BNA)
1559 (E.D. Pa. 2003). He experienced harassment
from many of his fellow employees. One co-worker
stated, "Did you see that fag that moved up on the
fl oor yesterday?" Kay v. Independence Blue Cross,
142 Fed. Appx. 48, 50 (3d Cir. 2005). Another
co-worker said, "You are just so gay," expressing
happiness that there were "real men" on the fl oor.
Id. at 50-51. Co-workers circulated a petition
stating: "If you want this queer off the fl oor, sign
here." Id. at 51. Kay received a note stating: "Stop
staring at me, you faggot;" and a fl yer for a gay sex
phoneline which included the phrases: "GAY! GAY!
GAY!" and "A real man in the corporate world
would not come to work with an earring in his
ear. But I guess you will never be a 'real man'!!!!!!"
Id. Lastly, the voice messages that Kay received
included the terms, "faggot," "fem," and "ass wipe."
Id. While the Th ird Circuit expressed shock at what
Kay endured, the court stated that its hands were
tied by the limitations of Title VII: "[T]he conduct
Kay alleges is nothing short of reprehensible and
we would hope that no employer would knowingly
tolerate the work environment that Kay claims he
had to endure. However, our reach is limited by the
scope of Title VII." Kay, 142 Fed. Appx. at 51 n.4.
11.9.2007 1:24am
BGates:
How do you think those workplaces manage to avoid a blizzard of lawsuits?
Sheer luck.

This is why being able to make fine distinctions is important in adult life.
The remark about what happens in adulthood would be more cutting if it hadn't been preceded by a discussion of your summer job.
11.9.2007 1:27am
A. Zarkov (mail):
Cornellian:

Finding one case does not demonstrate that invidious discrimination is systematic and widespread. One case proves nothing other than in a labor force of more than 100 million virtually, anything can happen. You have not shown we have anything more than a non-problem.
11.9.2007 3:56am
Public_Defender (mail):
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.

Anti-gay bigotry is a lot less strong in those areas than it used to be, but I think Frank's comments reflect his generation of gay rights activists. Not too long ago, there were only a few parts of a few states where gays could live openly without discrimination, and those places were pretty much all on the coasts.

I remember when the center of debate was whether school districts should fire teachers just for being gay. We've come a long way in just a few decades.

And Professor Carpenter is right about something else: Despite Barney Frank's faults, he is an excellent legislator who has worked tirelessly and effectively to fight anti-gay bigotry.
11.9.2007 5:50am
Brett Bellmore:

This thread is really pretty funny. Half of the people say that gays aren't discriminated against, so why the need for ENDA? The OTHER half says that they should and would discriminate against gays because its' their right to free association. So -- first half, please meet the second half. That should answer your question.


As a member of the third half of the people commenting here, the people who think you shouldn't discriminate, but that there shouldn't be a law against it, I want to remind you again: Freedom, the ability to chose your own actions, lives in the space between what you shouldn't do, and can be forbidden from doing, between what you should do, and can be commanded to do.

You're trying to craft a world, again, where all that is not prohibited is mandatory. That's a dystopia I don't want this country to become. I don't want to drink my milk, and refrain from biting my fingernails, under penalty of law. And that's where this is headed.

Both freedom and equality are banners people like to wave about, but you can only have ONE in the real world. The authors of our Constitution chose freedom, the people running the government today are rejecting it in favor of equality. Fine, let them amend the Constitution to be consistent with that radical change of course.
11.9.2007 6:43am
MLS (www):
Stephen Clark- which marriage provision was deleted, the one that said it was ok to discriminate on marriage or the one that said it was not?

Do you think that ENDA will result in less litigation than the age and disability discrimination laws? If so, why?

As for the CRS report, I will definitely take a look at it. Did they mention that CRS itself has already been sued for discriminating against a transgender person? See the following excerpt from the June 7,2006 Roll Call:

"A full year after filing a discrimination lawsuit against the Library of Congress, Diane Schroer, who is preparing for surgery to complete her transition as a male-to-female transsexual, has only now seen her civil rights case move into the discovery phase.

But in the 12 months since the case was brought, Schroer's suit already has forced the U.S. District Court to take a hard look at how sexual discrimination laws apply to the Congressional workplace."
11.9.2007 7:14am
Brooklynite (mail) (www):
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.


So you shouldn't be able to fire someone because his name is Fitzpatrick or Ferrari, but you should be able to fire him for taking communion or getting married in a church. Gotcha.
11.9.2007 7:39am
byomtov (mail):
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.

Ah, those foolish gays and lesbians don't know what's good for them. Making the same mistake the blacks made when they gave up their simple carefree lives as field hands and maids to go to school and become lawyers and doctors and whatnot.

People never learn.
11.9.2007 7:50am
NI:
Brett, if you don't drink your milk or refrain from biting your fingernails it only affects you. Employment discrimination affects lots of other people. That's the difference.
11.9.2007 7:52am
NI:
David M. Nieporent, you obviously don't understand how discrimination works in the real world. Sure, if one employer doesn't hire me I can in theory walk across the street and get another job. But what if we are in a recession and the job I just lost really was my last best hope? Or what if I live in the rural South where anti-gay discrimination is still systematic and there are places where NO employer will hire someone who is openly gay? (At one time no employer anywhere would hire someone who was openly gay.) Sooner or later I probably will find something that may or may not pay as well as the last one, but why should I suffer for the prejudices of other people?

You have a point that if I get a job somebody else won't, but it's an irrelevant point. If prejudice against a particular group (like gays) is prevalent you've basically unemployed all the gays. Would you be just as comfortable unemploying all the Blacks or Jews or women or Catholics?

And you are right that you can be as arbitrary as you like in discriminating against anyone who isn't a protected class, but if you're seriously making that argument I have to wonder which planet you live on. Those protected classes happen to be the classes that have historically suffered discrimination on a systematic basis. The groups that aren't protected, with the exception of gays, are groups of people that mostly don't need protection because nobody discriminates against them. When was the last time you heard of someone losing a job because they like broccoli or softball?
11.9.2007 8:00am
A. Zarkov (mail):
"Or what if I live in the rural South where anti-gay discrimination is still systematic and there are places where NO employer will hire someone who is openly gay?"

Then don't be openly gay.

What evidence do you have that the rural South today has systematic employment discrimination against homosexuals? Remember the word "systematic" means you need more that a few stories.
11.9.2007 9:03am
ay123 (mail):
It's the end of the world as we know it.
11.9.2007 9:08am
RogerZ (mail):
"Would you be just as comfortable unemploying all the Blacks or Jews or women or Catholics?"

Who is "unemploying" anyone? From whence do jobs derive? It is the business owner's property, and she (or they) ought to be allowed to do with their property as they wish. There can be no right to employment, and if you think there ought to be, you would only be able to implement this in the context of a complete dictatorship, where all are slaves of (and thus "employed" by) the state. Complete social decay (and death) would follow.

The test of harm done is simple: would the "discriminee" (potential employee) be better off if the "discriminator" (business) did not exist? Again, whence "employment"? If you can understand the nature of that question, I am sure you will be persuaded.
11.9.2007 9:12am
oh for X's sake (mail):
Mr. Carpenter's post said this: "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. "

So some wanted "gender identity" included in these protections? Would this have been a good thing?

Suppose I'm a business owner who is doing relatively well, but there's some turnover and I need to hire new people. I hire some new employees, and they become acclimated to the job. But then one of them, a male, starts coming to work dressed as a female. He wears a dress and makeup, and prances around in high heels.

If those Democrats (and I'm assuming Mr. Carpenter) had their way, I would not be able to fire these "gender nonconformists"? Can you be serious? There are legislators who do not want employers to be allowed to fire employees who are this messed up in the head, even if they are scaring off potential clients and business consumers?

I suppose if new legislation is ever passed, making it a violation to discriminate against gender nonconformists, the business owners and managers will simply have to come with other reasons. "No, you are not being fired because you are wearing a dress to work. It's simply that your people skills are not up to our standard, and it's affecting sales."

No wonder people hate lawyers.
11.9.2007 9:17am
Pluribus (mail):
Alcyoneus wrote:

[T]here is one, debatable distinction here: race is not a behavior, homosexuality is.

I'm trying to understand your argument. Your distinction is between a characteristic and behavior, right? You're arguing that a characteristic is not a valid basis for job discrimination but behavior is. It would then seem you would oppose discrimination against an employee merely for being a homosexual, but favor the right to discriminate against an employee for engaging in homosexual sex. But how would the employer know if the employee engages in homosexual sex? Would you require that the employee engage in the sex on the job? Or would you apoprove of bedroom spying to find out who the employee is having sex with? Is it your position that Richard Simmons (or somebody like him) should be protected against discrimination unless and until the employer knows who he has sex with (if he has sex with anyone), but unprotected if he has gay sex? Would this distinction hold true to past sex, or must it be present sex? What about the intention to engage in future sex? What if an employee signs an affidavit attesting that he or she is celibate?

In other words, you don't care who a gay person IS, you care who he or she has sex with, right?

Sorry if I find this distinction intellectually untenable.
11.9.2007 9:18am
SirBillsalot (mail):
Stephen Clarke: "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."

The constitutionality of affirmative action is a valid debate in the public sector, but the equal protection clause does not apply to the private sector. Many private employers for valid business reasons choose to practice AA. So now gays and lesbians are to be singled out to be excluded from such outreach by law?

I think this statute may be more of a setback than a gain.
11.9.2007 9:19am
Pluribus (mail):
ay123 wrote:

It's the end of the world as we know it.

Care to attribute this bit of wisdom? Jefferson Davis? Strom Thurmond? Adolf Hitler?

Do you really believe that shutting whole groups of people out of mainstream society makes life worth living?
11.9.2007 9:26am
NI:
RogerZ, are you serious? They can do whatever they like with their property? Meaning they can pump noxious fumes into the air or dump toxic waste into the water; they can sell products that make children sick; they can manufacture and sell products with fraudulent labels? They can chain eight year olds to assembly lines and make them work 18 hour days for fifty cents an hour? Sorry, but if you take seriously the notion that a business can do __anything__ on its own property that it pleases, you're crazy. And if a food company selling fraudulently labeled products raised your "where does food come from" defense, they'd be laughed off the stage.

You're right that there is no right to employment, but there is a right to compete on an equal footing for such employment as is available.

A. Zarkov, if you're looking for evidence of systematic discrimination, there's a hilarious story from a couple of years back in which Alabama decided to try to lure computer companies from Silicon Valley with the promise of lower taxes. Accordingly, Alabama dispatched economic development people to California to talk to Yahoo and Intel and IBM. Yahoo and Intel and IBM all told Alabama that a lot of their key employees were gay and would not consider moving to Alabama, to which the response was, "That's OK; we don't want them anyway. There are plenty of good local family people in Alabama you can hire." Nobody moved their operations to Alabama.

And your comment about don't be openly gay is a fine example of why ENDA is needed.
11.9.2007 9:28am
Squiggy the Beast Master (mail):
Another "civil rights" bill passed while affirmative action rolls on and on and every year more and more young white people will never know what their full potential in life could have been because opportunities in education and employment were denied them to fill a racial quota. It looks like a civil rights bill for Southerners is needed, i certainly wouldn't trust any of you to to not discriminate against a southerner judging by your comments.
11.9.2007 9:33am
David M. Nieporent (www):
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.
The ADA is much worse than ENDA, and is not really comparable. ENDA is much more like traditional race/sex discrimination legislation, which bans discrimination. The ADA, on the other hand, mandates discrimination. (They call it "accommodations.")

A normal anti-discrimination law says that you can't take (e.g.) race into account in employment decisions, and must treat people exactly the same without regard to race. But the ADA doesn't just say that with disability replacing race; it says you must take disability into account and give special treatment to disabled people. It mandates that a disabled person get special equipment, or a different work schedule, or special duties, or the like.
11.9.2007 9:37am
ay123 (mail):
I previously wrote: It's the end of the world as we know it.

Pluribus responded: Care to attribute this bit of wisdom? Jefferson Davis? Strom Thurmond? Adolf Hitler? Do you really believe that shutting whole groups of people out of mainstream society makes life worth living?

No, actually, it was a rock group called REM.

Lighten up, Pluribus. I was being sarcastic. I was not commenting on my own views of the legislation, only on the people (such as yourself) who take themselves far too seriously.

Concerning your very strange question, "Do you really believe that shutting whole groups of people out of mainstream society makes life worth living?"

Um, no, I do not really believe that shutting whole groups of people out of mainstream society makes life worth living. Life is worth living for a number of reasons that have nothing to do with shutting whole groups of people out of mainstream society.

But in all honesty, I have to admit, I do think crossdressers should be shut out of mainstream society, otherwise it will cease to be "mainstream."
11.9.2007 9:39am
Pluribus (mail):
The posts here prove that anti-gay feelings are not limited to the belief that marriage should only be between a man and a woman. Those feelings are broad and intense enough to cover all sorts of discrimination, including the right to earn a living, which I had thought was kind of basic. I suppose some here will say there is no such "right"—the right to shut whole groups of people out of the economic life of the community should trump any claim to the "right" to make a living. An expansive view of freedom of association is more important than putting bread on the table—that is, if the bread is going to be on the table of a hated minority. And I suppose some here will say, hey, that's the American way. And you still hear arguments here that there is actually no anti-gay discrimination in our blessed land. (Although discrimination is, of course, a basic human right.)
11.9.2007 9:41am
Pluribus (mail):
ay123 wrote:

Lighten up, Pluribus. I was being sarcastic.

Sarcasm, like a joke, doesn't work if you have to explain it.
11.9.2007 9:44am
ay123 (mail):
Pluribus, your last comment was a complete mish-mash. You're making no sense. Stop yourself, take a deep breath, get your thoughts in order, then try again. Everything will be okay. It's the Internet, you're anonymous, and no one will be kicking you off because you're strange in some way.
11.9.2007 9:45am
Prufrock765 (mail):
It is shocking to me as a rather casual reader of this ostensibly libertarian blog to see the extent to which the powers in charge here have fallen to their knees (no pun intended) on this issue.

It is by no means inconsistent to maintain both that we should not repeal the 30 or 40 year old laws banning race/gender discrimination and that we should not carve out a new class of putative victims based on sexual orientation.

It is terribly unfair to a poster who opposes this legislation to "order" him to just come out and admit his hatred of gay people. Opposition does not connote hatred here at all. There is a fight here between the freedom to dispose of one's resources according to one's own preferences and the freedom to be free from the obloquy of employment discrimination.

Whether there is a freedom to associate explicitly mentioned in the constitution should be irrelevant--especially for anyone who cares about liberty. The idea that the constitution is a list limiting OUR rights rather than limiting those of the government is somewhat frightening coming from ostensible libertarians.

The number of groups that now become theoretically eligible for ENDA type protection boggles the mind. When it only takes a 3% demographic representation and good political juice...who's next?
11.9.2007 9:45am
ay123 (mail):
Pluribus wrote: Sarcasm, like a joke, doesn't work if you have to explain it.

Sometimes failure to get a joke (or sarcasm) reflects poorly on the hearer. Maybe it's a gay thing.

That last sentence was sarcasm.
11.9.2007 9:47am
Jon Rowe (mail) (www):
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.

Fine, a fundamentalist Protestant won't hire Catholics because he goes to the "Satantic" Catholic masses every week, part of a Church that is the Whore of Babylon. Or a gay employer won't hire any evangelicals or conservative Catholics because he thinks their Church's position on homosexuals are immoral. Or an atheist employer refuses to hire any religious person because he views their superstition as dangerous. Religion, at least in free societies like America, is entirely chosen, and entirely mutable.

If we could just agree that if it's okay to discriminate against gays for being gay, likewise it should be okay to discriminate against religious conservatives because they are traditional Catholics, evangelicals, Muslims or Jews, (the latter category being far more of a choice than the former), I'd be satisfied. Otherwise, as it currently stands, religious conservatives possess "special rights" that gays don't have. And that is wrong.

Religion is not a proxy for ethnicity, because religion is religion, ethnicity is ethnicity.
11.9.2007 10:03am
glangston (mail):
Squiggy the Beast Master (mail):
Another "civil rights" bill passed while affirmative action rolls on and on and every year more and more young white people will never know what their full potential in life could have been because opportunities in education and employment were denied them to fill a racial quota. It looks like a civil rights bill for Southerners is needed, i certainly wouldn't trust any of you to to not discriminate against a southerner judging by your comments.



I'm sure it was quite common to discriminate against Southerners based on their accents. Many chose to lose the accent to avoid it. The stereotype seemed to be that the slow southern drawl hid a clever and deceitful person. Sounds a bit like the old Jewish stereotype.
11.9.2007 10:07am
questionn (mail):
Religion, at least in free societies like America, is entirely chosen, and entirely mutable.

Some people consider homosexuality to be entirely chosen, and entirely mutable. Are they wrong?

I had a good friend in college who went through a very difficult emotional stage. During that time his homosexual friends tried to convince him that he was gay. He almost bought into it, started to live that lifestyle, but eventually realized it was making things worse. He was hounded by these friends who insisted he was denying his identity. But he stood his ground, and remained heterosexual.

That was a choice. Others tried to convince him that he was born gay. He wasn't. They were wrong.
11.9.2007 10:17am
Oren (mail):

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).


New research is quickly finding that gender is not the binary property once assumed but rather quite a bit more complex. For instance, there are females (XX) that are, due to a genetic condition exposed to male hormones in utero. Others have a defect in the hormonal receptors that handle sex hormones. Others are deficient in various important enzymes or from a defect in the pituitary.

To call the behavior of these people "a deliberate attack on common social mores" is beneath contempt.
11.9.2007 10:17am
Jon Rowe (mail) (www):
That was a choice. Others tried to convince him that he was born gay. He wasn't. They were wrong.

Well he could have been a genuine heterosexual who perhaps displayed effeminate characteristics. Or he could have been a homosexual like Larry Craig with "issues." I don't see any evidence presented from your anecdote that we had someone who chose not to be attracted to men and to be attracted to women.
11.9.2007 10:23am
barney frank fan (mail):
"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."

If you really want to be inspired, here's a great example of why Barney should be appreciated for what he accomplished:
http://www.youtube.com/watch?v=3vm1PkNfdp8
11.9.2007 10:23am
phwest (mail):
NI: Please take your straw man out back. Saying I have the right to run my business as I choose no more implies that I am asserting my right to enslave my employees than asserting the right to own a gun means I'm also asserting the right to shoot random people on the street. The arguement is that private interests have the freedom to enter into contracts on whatever terms they want. That does not imply the right to contract to damage third parties or to impose a contract without consent.
11.9.2007 10:24am
Oren (mail):

Some people consider homosexuality to be entirely chosen, and entirely mutable. Are they wrong?


Almost certainly, in that there is considerable evidence for some biological factor in sexual orientation (the pathological cases I cited at 10:17 notwithstanding). Furthermore, the considerable evidence for homosexuality in the animal kingdom belies the theory that it is entirely chosen.
11.9.2007 10:24am
Oren (mail):
OK phwest, but no reasonable person will agree that you have the right to run your business as you choose to begin with.
11.9.2007 10:27am
questionn (mail):
Jon, my point is simply that my friend was being coerced into believing he was something that he was not. (He was heterosexual, and effeminate, but when through an emotionally difficult time that left him confused on many levels.) He almost came to the conclusion that he was indeed homosexual, thanks in part to pressure from his gay friends. He eventually realized he wasn't, but if he had decided that he was and lived that lifestyle for a long time, he would probably still be homosexual, and thinking that he was born that way and was at last in touch with his true identity. (That's his own assessment, actually.) And I wonder how many homosexuals think they were born that way, think they have no choice, but actually they were convinced of something that was not true.
11.9.2007 10:28am
Oren (mail):
questionn - - perhaps we could start by not assuming that everyone has a "true identity" that is binary? I don't know about your friend but I know a lot of people that are really neither here nor there, as it were.
11.9.2007 10:30am
NI:
phwest, my man is not made of straw. The comment I was responding to said that a business owner had the right to do ANYTHING with his property, so I'm merely testing the outer limits of that. I think everyone (or almost everyone) here would probably agree that there are limits on what you can do with your own property and the question under debate is where that line gets drawn, not whether it exists.

But I would disagree even with your rephrasing of the issue, that business owners have the right to enter into whatever contracts they like. Really? I can contract for a kilo of heroin or a 12 year old prostitute? Nope, the state can and should put limits on contracts so again, we are discussing where that line should be drawn, not whether it exists. Because employment discrimination does harm third parties I have no trouble drawing it to forbid employment discrimination.
11.9.2007 10:31am
questionn (mail):
Does ENDA cover people who "are really neither here nor there"?
But yes, I agree, I've known such people myself. Sad, really.
11.9.2007 10:32am
JLV:
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.


Brooklynite: So you shouldn't be able to fire someone because his name is Fitzpatrick or Ferrari, but you should be able to fire him for taking communion or getting married in a church. Gotcha.


If your straw man is really weird enough to be morally offended by such things, then sure.

How about answering my question. Should I not be able to refuse employment to a man who beats and demeans his wife simply because does so on religious grounds?

Or, to mix it up a bit, should a black employer not be allowed to refuse employment to a member of the racist "World Church of Creator," simply because the racism is religiously motivated?

Religion is not a proxy for ethnicity, because religion is religion, ethnicity is ethnicity.

Mr. Somin recently recently referred to himself as a Jewish atheist What religion is he?
11.9.2007 10:36am
Cornellian (mail):
"Or what if I live in the rural South where anti-gay discrimination is still systematic and there are places where NO employer will hire someone who is openly gay?"

Then don't be openly gay.


And when someone asks you what you did over the weekend, and you went on a weekend trip with your same-sex significant other do you lie about it? Is telling the truth being "openly gay?" If someone from your workplace happens to see you with your same-sex significant other away from the workplace and tells your co-workers, is that your fault for being "openly gay?"

What evidence do you have that the rural South today has systematic employment discrimination against homosexuals? Remember the word "systematic" means you need more that a few stories.

In my earlier post I pointed out that information about discrimination about discrimintion against gay people in the United States is readily available for anyone with Google and a willingness to use it. Here's another item I found in about 15 seconds:

"In the greater scope of society, looking at the workforce, discrimination runs rampant as well; homosexual workers are unevenly treated by employers. Most telling is that, as of 1987, 18% of Anchorage, Alaska employers reported that they would fire a homosexual, 27% would not hire one, and 26% would not promote one (Badgett 1995). " (Badgett, M. V. Lee. "The wage effects of sexual orientation discrimination." July 1995. Industrial and Labor Relations Review.)

Now perhaps the employers of Anchorage are just an anomaly and the employers of Alabama, Mississippi, Louisiana and other southern states are far more tolerant than employers in Alaska. Or maybe they've all had a revolution in their thinking since 1987. How much money are you willing to bet on that? How many more seconds do you think it would take to find similar statistics for the southern states?
11.9.2007 10:45am
JosephSlater (mail):
So let's sum up. Objections to ENDA seem to be in the following categories:

(1) ALL employment discrimination laws are wrong, on some version of libertarian thinking. Some would add, all such laws should be unconstitutional, it's just that the courts have pretty much uniformly read the constitution incorrectly for, well, many decades.

It's hard for me to buy the "unconstitutional" argument, given the text of the Commerce Clause (and for some forms of discrimination, the 14th Amendment), as opposed to the supposed "right of association" in hiring, which doesn't actually seem to be in the text.

But whatever I think, or even for folks who think all these laws are wrong on policy if maybe not actually unconstitutioanl, this ship has sailed, both in terms of Con law and in terms of what legislatures are doing. All trends in the U.S. are for more protections of workers in the workplace by legislation (a fact perhaps not entirely unconnected to the decline of unions). So while people obviously can continue to make this argument, it's not going anywhere.

(2) Maybe Title VII was OK, or maybe it's OK to protect RACE, but gay rights are somehow DIFFERENT.

Those who question whether discrimination against gays and lesbians exists should check out the legislative history of the act, and/or get out more.

Then there are those who don't think gays/lesbians deserve protection, because there is something icky or weird about them. It is entirely fair, in this context, to reply that this is a type of irrational bigotry.

(3) The law will have lots of negative consequences, including unforeseen ones, including but not limited to a bunch of frivolous lawsuits by folks pretending to be gay -- you know, just like that Adam Sandler movie.

As I and others have noted in other threads, (per Stephen Clark's excellent work) about half the workers in this country are ALREADY covered by such laws. So, one would expect that if laws barring employment discrimination on the basis of sexual orientation would produce all these predicted horribles, we would have SEEN that already. And that folks arguing that these laws would create these horribles would feel obliged to find some EVIDENCE of this. The absence, again, is rather telling re this objection.

Bush will probably veto this, and there doesn't appear to be enough for an override, but it is interesting which way the wind seems to be blowing on this issue.
11.9.2007 10:46am
Jon Rowe (mail) (www):
Somin is an atheist -- that's his religion or lack thereof. "Jewish" refers to his ethnicity.
11.9.2007 10:53am
discrete (mail):
In response to Grover Gardener who said 'Why should he [a gay person] have to be "discreet"? Do you [a heterosexual person] have to be?'

The answer is yes, I do have to be discrete. When I work, I don't talk about my sexual life. I don't wear it on my sleeve. It's no one's business but my own (and my wife's). My place of employment is not the place for that to be discussed.

From what I've observed, many gay men and women like to wear their homosexuality on their sleeves. They like to rub people's noses in it. They don't know when to shut up about it. If you kindly tell them, "Please don't discuss this, I'm not interested," they think they are being oppressed. It is not bigotry to prefer to mind one's own business.

In the real world, a person's sexuality is not something that should be displayed or announced in the workplace. I question the wisdom of ENDA, because now there will be even less discretion than before.

If I were to constantly tell my boss or my colleagues, "I prefer blondes!" I would not be surprised if I got fired. (I don't prefer blondes, but that's just an example. My wife is a brunette.) That's just not the type of thing you're supposed to talk about at work. But a person can constantly announce that he is gay, and everyone is supposed to both ignore it and approve it simultaneously.

If you're gay, great, good for you. Now please keep it to yourself, and don't act like we're obligated to make you feel all warm and fuzzy. A job is a job, and it isn't supposed to be a place where you can feel affirmed, it's a place where you get paid to work hard and benefit your employer. Have your fun at home, with whomever you want to, and please keep it to yourself. Your employer doesn't want to hear about it, and if you make an obvious display he has every right to find someone else who won't make issues of sexuality.
11.9.2007 10:53am
DangerMouse:
This law has nothing to do with solving a real problem, and has everything to do with penalizing people who don't hold the correct views. It's only a matter of time before laws are passed enforcing compliance with a host of similar protections that women and minorities have. So one day if you tell people your religious beliefs mean that you think homosexuality is a sin, you can be penalized for harassment against gays.

Based on laws like this which attack private thoughts and behavior, it's really only a matter of time before the government comes out and openly declares war on the religious.
11.9.2007 10:54am
davod (mail):
"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..."


The Red Cross has that covered. You can donate and mark a card saying you do not want your blod to be used. All ver discrete.
11.9.2007 11:00am
JLV:
Somin is an atheist -- that's his religion or lack thereof. "Jewish" refers to his ethnicity.

Exactly. In Mr. Somin's case, his Jewishness is his ethnicity. In the case of, say, a Serb who converts to Judaism, his Jewishness is his religion. Hence, in the former case, religion is a proxy for ethnicity; in the latter case, it is a proxy for behavior. Seems to refute your statement that, "Religion is not a proxy for ethnicity, because religion is religion, ethnicity is ethnicity." Or, perhaps I should have been more specific: a religious label (e.g., Jewish) is often simply a proxy for ethnicity.
11.9.2007 11:07am
noname (mail):
It seems to me that the critics of the ENDA (at least those who believe that some sort of anti-discrimination law is desirable) are suggesting that sexual orientation should not be a prohibited basis for discrimination for one or more of the following reasons:

a HISTORICAL reason: The idea here is that anti-discrimination legislation exists to right a historical wrong (like the particular history of African Americans), and that there is no historical wrong to be righted for people with particular sexual orientations.

an IMMUTABILITY reason: The idea here is that anti-discrimination legislation exists to prevent people from being discriminated against for inherent (generally understood as biologically determined) traits (like skin pigmentation) that are immutable and unrelated to work performance and that sexual orientation is not an inherent trait but rather a choice.

a VISIBILITY reason: This is similar to the immutability reason, but slightly different. The idea here is that anti-discrimination legislation exists to prevent people from being discriminated against for traits (inherent or otherwise) that are readily visible (i.e. cannot be kept hidden) and are unrelated to performance and that sexual orientation need not be readily visible.

an ECONOMIC HARM reason: This idea seems to be that being denied a particular job is not really an injury. It is related to the historical reason to the extent that it relies on the idea that there is no systematic denial of such opportunities, that it only affects individual job seekers. At an aggregate level of analysis, it rests on the idea that society as a whole suffers no harm from denying people jobs on the basis of sexuality because someone else will get the job and that if it had gone the other way, that person would be without a job.

The idea that there is no history of discrimination against people for sexual orientation is laughable. The history is long and well documented, including in the ENDA itself.

The idea that anti-discrimination laws should only cover immutable characteristics fails on two counts. First, it rules out laws forbidding discrimination on the grounds of religion (though some might accept that, I suppose). Second, the extent to which homosexuality or bisexuality or heterosexuality are immutable is highly contested, with leading scholars (as I understand it) tending to believe that they are at least partly involuntary (either biologically or socially influenced, or both).

The visibility reason fails for similar reasons. First, it would also eliminate anti-discrimination laws covering many practices like religion which could conceivably be kept hidden. Second, it fails to account for the fact that a demand to keep aspects of oneself hidden (when a similar demand is not made of other people for similar aspects - i.e. forcing gay people, on pain of losing their jobs, to not mention the genders of their erotic partners, when straight people can do so at will) is itself discriminatory, not a solution to discrimination (demanding that a light-skinned African American pass is itself an act of discrimination).

The economic harm reason fails not only for the same reason as the historical reason (that there IS a history of systematic discrimination such that the reality is not that one individual may lose a particular job but rather an increased chance for a non-straight individual to be unemployed or underemployed), but also because on a societal level having people who are better qualified and better able to perform jobs unable to perform them is economically inefficient.

(I realize that there is another view, the view that NO anti-discrimination legislation is desirable. That position has, in my opinion, the advantage of being intellectually consistent, albeit myopically formalistic and ignorant of social and economic realities.)
11.9.2007 11:15am
Pluribus (mail):
[deleted response to deleted comment]
11.9.2007 11:17am
Skyler (mail) (www):
My family comes from Portugal. My grandmother worked as a housekeeper until she was in her 80's. My mother was raised with one bathtub available to use, and it was in the neighbor's house.

Yet, a wealthy man from Mexico gets preferential treatment in schools, employment, etc. Just because my family comes from the other side of the Iberian Peninsula, I don't rate this preferential treatment. Yet, to denounce such preferences would make me a bigot in some people's eyes.

I'm not a homosexual, and I although I can't understand why anyone would be one, I recognize that this is a free country and people have a right to do whatever they want to do.

But why should their behavior (remember this legislation is not for orientation but for perceptions of behavior) grant them special treatment? Is there something so beneficial to our society that we should reward it? We don't have laws protecting employees from being fired for performance, why should we have this law?

That is, say my boss thinks I'm doing a bad job or that he thinks I did something wrong at work. I'm not entitled to a hearing to determine my culpability. He just tells me to go home and not return. The facts could be that someone "framed" me and I was innocent, but my job isn't protected from such arbitrary termination.

Yet, if I were to start coming to work wearing lipstick and dresses, I could not be fired. Now my boss would have to prove that my termination was due to performance, he would bear the burden of proving that I did something wrong.

This is an unjust proposed law. It rewards behavior that is irrelevent to business activities.
11.9.2007 11:24am
Serendipity:
I'm really amazed by all the arguments questioning whether homosexuality is mutable characteristic. The implication there, of course, is that were it a choice, it would be the wrong one. This seems completely irrelevant. We certainly know that religion is a mutable characteristic, but most people wouldn't attempt to justify penalizing people for having chosen the "wrong" religion. Choice or not, people ought to be entitled to their private lives without fear of undue retaliation. What happened to live and let live?
11.9.2007 11:27am
noname (mail):
[deleted response to deleted comment]
11.9.2007 11:29am
Prufrock765 (mail):
The comments of Pluribus and others seem to presume--although I doubt that they would admit this---that the hypothetical job that is being refused a gay person is some sort of public asset, rather than being a private asset that the employer is willing to exchange for labor services.
Why should any (every...?) employer be compelled, not merely by civic convention but by legal force, to prove to Pluribus, or Barney Frank, or anybody else that his or her decision to hire someone is "intellectually tenable"?
I ask the pro-ENDA crowd to describe for me where the line is when you become libertarian again. To what interest group would you say "no, you can not be a preferred victim class under employment discrimination law"...?
And, again, it is not sufficient to argue that we have done it for blacks and so now there is no principled reason to refuse to do it for gays.
11.9.2007 11:30am
noname (mail):
Mexico is on the other side of the Iberian peninsula from Portugal?
11.9.2007 11:33am
Pluribus (mail):
discrete wrote:

In response to Grover Gardener who said 'Why should he [a gay person] have to be "discreet"? . . . The answer is yes, I do have to be discrete. When I work, I don't talk about my sexual life. I don't wear it on my sleeve. It's no one's business but my own (and my wife's).


Sorry, discrete, but this is garbage. In the workplace, people talk about what they did on the weekend. On the holidays. "What are you doing for Thanksgiving?" "Do you have any kids?" "Would you and your wife like to come over on Saturday night for dinner?" The gay person is expected to lie or to walk a tight rope in a discussion like this. Well, my "significant other" and I are going to visit "his" (oops, I mean "his" or "her") family for Thanksgiving. Well, I'd love to come over on Saturday night, but I'm not allowed to tell you I don't have a "wife." I have a "significant other," and if I told you who "he or she" was, I'd lose my job. (Of course, a statement like that would already be enough to spill the beans and get you fired.) What should all of this have to do with anybody's right to employment, or competence for employment? Why should a significant minority of the population live in abject fear of losing their very livelihood because people might find out that they are not heterosexual? What besides blatant discrimination based on anti-gay prejudice justifies this kind of treatment?
11.9.2007 11:35am
JosephSlater (mail):
Actually, Skylar, there are many situations in which even broader protections from firing exist in the U.S. Pretty much all of the over 16 million folks in unions have "just cause discharge" provisions; public employees often have such protections as part of civil services statutes; the state of Montana has just cause protections by statutes. A number of states have laws barring discharge for various sorts of activities done outside the workplace (including a number of state statutes which generally bar discharge for "use of legal products" --guess what that's about. . .. ).

And of course, almost all other industrial democracies have general "just cause" provisions regarding discharge.

But people can and are fired for poor performance, and none of these laws prevent that.
11.9.2007 11:35am
Brett Bellmore:

it's just that the courts have pretty much uniformly read the constitution incorrectly for, well, many decades.


One of the implications of vertical stare decisis is that such uniformity in no way implies consensus. A judge who thinks the current reading of the 14th amendment, or interstate commerce clause, is transparently false, is not allowed to rule based on that conclusion, no matter how well he can support it.

Essentially, your uniformity implies nothing more than that the Supreme court hasn't changed it's mind. Since the court frequently goes decades without revisiting wrongly decided cases, on the theory that stability is more important than actually being right, that really doesn't say much about whether current 14th amendment jurisprudence is actually a reasonable reading of the Constitution.
11.9.2007 11:39am
Skyler (mail) (www):
Noname, no Mexico is not in Iberia, but anyone coming from Spain and then living in Mexico or other parts of north, central and south america are hispanic and thus get preferential treatment.

JosephSlater, you have a very good point in that it is STATE law, not federal law that makes such things possible. The state I live in has no such laws because the people of this state have different priorities. My state is a staunchly at-will state. The federal government is chipping away at the at-will doctrine as though they had a right to intervene in state employment laws.


But people can and are fired for poor performance, and none of these laws prevent that.


Yeah, but this proposed law would put the burden is on the employer only if the terminated employee acts in a homosexual manner. The rest of us that don't act like homosexuals just have to lump it. There is something manifestly unjust about that.
11.9.2007 11:43am
M. Simon (mail) (www):
I hate dealing with cross dressers. They are such a drag.

I prefer happy dressers.
11.9.2007 11:45am
TLove (mail):
Just more money for lawyers. Rent seeking transfer payments to the legal profession.
11.9.2007 11:46am
Oren (mail):
[deleted response to deleted comment]
11.9.2007 11:48am
Ken Arromdee:
If we could just agree that if it's okay to discriminate against gays for being gay, likewise it should be okay to discriminate against religious conservatives because they are traditional Catholics, evangelicals, Muslims or Jews, (the latter category being far more of a choice than the former), I'd be satisfied. Otherwise, as it currently stands, religious conservatives possess "special rights" that gays don't have. And that is wrong.

You seem to be arguing based on the assumption that people who oppose ENDA on these grounds are really religious conservatives, don't really believe in the principles they claim, and won't be consistent and allow discrimination against conservatives too.

That's just an assumption.

Most of the people who argue such things on here, and perhaps even most of them on the Internet in general, are libertarians or something close who really do believe in such things out of principle, and aren't using it as a cover for homophobia.

So the answer would be "Of course private employers should be able to discriminate against conservatives too". Why would you expect anything else?
11.9.2007 11:48am
noname (mail):

Noname, no Mexico is not in Iberia, but anyone coming from Spain and then living in Mexico or other parts of north, central and south america are hispanic and thus get preferential treatment.

So, only people who come from Spain and then go to those places and then go to the U.S. get the "preferential treatment?" And those who come from elsewhere and go to those places (say, descendants of former slaves, or indigenous peoples) don't? I'm pretty sure that's not true. I'm also pretty sure that, to pick an example that should be near and dear to your heart, people of Portuguese ancestry who lived in Brazil and then came to the U.S. would have the same coverage against ethnic discrimination as people of Spanish ancestry who came to the U.S. from Mexico. (And, people who came directly from Spain would have the same coverage as those who came directly from Portugal.)
11.9.2007 11:49am
Pluribus (mail):
Prufrock765 wrote:

The comments of Pluribus and others seem to presume--although I doubt that they would admit this---that the hypothetical job that is being refused a gay person is some sort of public asset, rather than being a private asset that the employer is willing to exchange for labor services.

Speaking only for myself (I don't speak for a "crowd," although you seem to think so), I believe that anti-discrimination laws should not apply to domestic employment, private companies with fewer than a specified number of employees, or religious institutions with any number of employees if they have established religious beliefs that would be offended by offering employment to certain people. I believe that anti-discrimination laws should apply to companies over a specified size that are offering employment to members of the public and to governmental employment, at whatever level. I believe that's the scope of the existing laws and would be the scope of the new law. The "public" nature of governmental employment seems to be self-evident. When a company offers employment to members of the public; when its employees are covered by publicly-mandated unemployment insurance; Social Security; worker's compensation insurance; retirement programs; 401(k) plans, and similar governmentally mandated and/or governmentally financed programs, I think the public has a perfect right to prohibit discrimination. At that point, it's no longer private--it's public.

Do you oppose zoning laws because they restrict the way people can use their private property and think that has no effect on the public welfare? I don't.
11.9.2007 11:51am
Oren (mail):

The federal government is chipping away at the at-will doctrine as though they had a right to intervene in state employment laws.


I don't think you understand the meaning of the phrase "as though" - it usually implies that the subordinate phrase is not, in fact true. In this case, it clearly is (see here).
11.9.2007 11:53am
confused (mail):
Oren, sorry, what does this mean? (MA FTW!, sry).
11.9.2007 11:53am
Oren (mail):
Massachusetts for the win! And then an apology for using internet slang (sigh).

Despite all that's manifestly f***ed up about this state, I'm rather proud to live in the only state where two guys can get hitched. I'm even more proud that the anti-gay marriage referendum couldn't even get 25% of the legislature.
11.9.2007 11:58am
Oren (mail):

A judge who thinks the current reading of the 14th amendment, or interstate commerce clause, is transparently false, is not allowed to rule based on that conclusion, no matter how well he can support it.


According to Article I, Congress is only allowed to created Federal Courts inferior to the SCOTUS. Having the power to overrule SC precedent doesn't sound inferior to me.
11.9.2007 12:02pm
Jon Rowe (mail) (www):
JLV:

No Jewish is probably the only category that is both a religion and an ethnicity. If we removed "religion" but retained "ethnicty" on the civil rights list. You could discriminate against someone who practices their Jewish religion, but not because of someone is an ethnic Jew. I don't see why it's so hard to separate the two. There are plenty of Christians who have Jewish roots, for instance Jay Sekulow who is as Christian as his employer Pat Robertson but an ethnic Jew.
11.9.2007 12:04pm
jrose:
Prufock: I ask the pro-ENDA crowd to describe for me where the line is when you become libertarian again.

I'd draw the line at characteristics that are primarly immutable, adding in two expceptions: 1) religion because of our history and 2) allowing discrimination when the characteristic is salient to job performance (e.g., height in basektball).

As a libertarian opponent of ENDA, where do you draw the line?
11.9.2007 12:06pm
JLV:
There is a type of gay sex called "fisting." I find that repulsive. . . . [A]m I a bigot for thinking that such behavior is perverse and being unwilling to hire someone who engages in it?


Is it the employer's prereogative to say--I will hire people who do "type" A, B, and C, but never D? Are employers to become the bedroom police of the work force? If you find "type" D "perverse," hey, don't do it. But don't try to deny all gays jobs because they "might" do it.


Let's say I run a family business. I believe that homosexuality is immoral and I counsel my children (who work with me) against it. I also instruct them that all premarital sexual relations are immoral and that sexuality properly belongs in a monogamous, heterosexual, life-long union. Then, some cross-dressing flamboyant, in-your-face homosexual wants to work with me (and thus with my family), and I can't refuse him on account of his behavior?

I guess my big question to all the pro-ENDA people out there is this: when does propensity toward certain behavior create a "class." If someone swears like a sailor, is he simply a "swearer"? Can I not refuse him employment because I don't want that kind of person to work in my office?

What if someone is perpetually dark, cynical, and pessimistic - can I not refuse him employment because he is a "depressionist"? Is every behavior an "ism"?

Granted, these types of people may actually do excellent work, but I don't want to be around them. You might say, "well, work environment is legitimate, but if behavior affects neither work nor work environment, then it's none of your business."

Alright, how about this: What if someone has abandoned his wife and five children to re-live his college years and chase tail? I'm not going to hire him. I'm not going to subsidize his treachery in abandoning his family. I disapprove of his actions, and I don't care that they don't affect the work environment. I despise him and don't want to be around him. This isn't my prerogative?
11.9.2007 12:07pm
Oren (mail):

You [the employer] could discriminate against someone who practices their ______ religion


That position is so far from the mainstream as to be utterly irrelevant (at least insofar as we live in a democracy). I don't think you could get even 15% of Americans to agree to that sentiment.
11.9.2007 12:07pm
Brett Bellmore:

According to Article I, Congress is only allowed to created Federal Courts inferior to the SCOTUS. Having the power to overrule SC precedent doesn't sound inferior to me.


I'm not saying that they should be able to over-rule Supreme court precident. I'm saying that, given that they can't, unanimity doesn't imply consensus.
11.9.2007 12:14pm
A. Zarkov (mail):
Cornellian:

"In the greater scope of society, looking at the workforce, discrimination runs rampant as well; homosexual workers are unevenly treated by employers. …"

Getting better. At least we have something more than an individual story. But Badgett study pertains to one city 20 years ago-- hardly a contemporary, and hardly national. Wouldn't it be better to cite Klawitter and Flatt, "The Effects of State and Local Antidiscrimination Policies on Earnings for Gays and Lesbians," Journal of Policy Analysis and Management, 17(4): 658-686 (1998). After all this study gets to the heart of the matter: is this kind of legislation even effective? It uses 1990 census data, with national coverage. According to Carpenter, this is the only published study to examine the effects labor market protection on the basis of sexual orientation. Perhaps you don't cite it because it found no relation between state and local ordinances and average earnings. To be fair, Carpenter reports new but preliminary results using 2000 census data and a more complex model, which suggests that "same-sex couples (both men and women) receive a roughly 4% wage premium if they live in states that provide employment discrimination protection based on sexual orientation." However Carpenter qualifies this result by saying These very early findings suggest a possible effect of policies on the wages of gay men
and lesbians, but perhaps also indicate a broader impact on unmarried couples in general.

Perhaps if we waterboard the data enough we can force it to give you the result you want.
11.9.2007 12:18pm
JLV:
If we removed "religion" but retained "ethnicty" on the civil rights list. You could discriminate against someone who practices their Jewish religion, but not because of someone is an ethnic Jew.

If you could demonstrate in a court of law, to a jury of your peers, that you were honestly repulsed by some practice that only incidentally happened to be a Jewish practice (e.g., circumcision, which you call "child genital mutilation" - not my opinion, for the record) and not simply because the practice was motivated by a religious belief that you despise (e.g., monotheism), then you have valid grounds not to hire. In that case, you are not discriminating against someone for practicing their religion; that their practice happens to be religiously motivated is incidental.

Now, Mr. Rowe, please answer my question: can you disapprove of no behavior (in the form of not extending employment) if that behavior is religiously motivated? I'll pose my questions again:

Should I not be able to refuse employment to a man who beats and demeans his wife simply because he does so on religious grounds?

Or, to mix it up a bit, should a black employer not be allowed to refuse employment to a member of the racist "World Church of Creator," simply because the racism is religiously motivated?
11.9.2007 12:20pm
M. Simon (mail) (www):
Having the power to overrule SC precedent doesn't sound inferior to me.

So how will the SC ever get a case on which it can change its mind?
11.9.2007 12:28pm
Ramza:
A) If I were a scientologist, and I practiced my religion and my religion had no effect on my job performance then I can't be fired due to my religion (but I can be fired due to a whole host of other conditions.)

B) If I were gay, and I had a male partner and my sexual orientation had no effect on my job performance than I can't be fired due to my sexual orientation (but I can be fired due to a whole host of other conditions.)

C) If I were straight but appeared gay due to how effeminate my personality is, and my effeminacy had no effect on my job performance then I can't be fired due to my perceived sexual orientation of being gay (but I can be fired due to a whole host of other conditions.)

People argue A is acceptable but not B and C for government intervention. Others argue A isn't acceptable but it is the law and trying to return the freedom to fire due to religion is not worth effort, not worth the energy to increase freedom. It is an acceptable tradef-off. Yet it isn't an acceptable trade off to prevent people from firing people due to sexual orientation, they receive "real harm" to their freedom due to the fact they can't fire that effeminante gay queen or that butch lesbian. And then these people wonder why they are perceived as homophobic, why one is acceptable but one isn't.
----------
Sometimes people need to get their heads out of theory for a little while and actually use their other parts of their brains to perceive how other people may react to their arguments. Actually listen to ones arguements and try to view them from a different perspective. A perspective that differers from their own, one that cares more about feelings, social interaction, not offending someone etc, than caring about theory and being precise. I am a nerd so I make a big deal abut being precise, yet at the same time sometimes me as well as other nerds make too big of a fuss about being precise that we miss the bigger picture when it comes to social interaction.
11.9.2007 12:32pm
A. Zarkov (mail):
NI:

"And your comment about don't be openly gay is a fine example of why ENDA is needed."

Now we get to the heart of the matter. The real reason for this legislation is not employment protection, but protection for an "in your face lifestyle."

"Alabama decided to try to lure computer companies from Silicon Valley with the promise of lower taxes."


Companies want to be in Silicon Valley because that's where the action is in tech. Startups must locate there because the venture capitalists don't want to travel. They want to see what their money is doing and they want it located down the street. There are law firms with offices in the valley and not in SF. It's also easier to recruit people because of such local concentration of tech talent. I seriously doubt their desire to remain in SI has anything to do with gay employees.
11.9.2007 12:38pm
Pluribus (mail):
I wrote:

Sarcasm, like a joke, doesn't work if you have to explain it.

ay123 answered:

Sometimes failure to get a joke (or sarcasm) reflects poorly on the hearer. Maybe it's a gay thing. That last sentence was sarcasm.

You probably should quit when you're ahead, ay123. Are you proclaiming here that you are gay, or slyly insinuating that I am? I don't recall making any such announcement, nor would I. And if you are gay, frankly, my dear, I don't give a damn.

It may interest you to know that a lot of straight people have no problem with equal rights for gays. Matter of fact, the overwhelming majority of those who voted for the law we are now discussing are straights who seem to think it's OK go extend equal rights to gays.

BTW, I am not being sarcastic.
11.9.2007 12:47pm
noname (mail):
It's not about an "in your face lifestyle." It's about not discriminating against a group of people by making them be silent about aspects of their life (marital status, for example) about which other people are free to express themselves.

No one thinks that gay people any more than straight people should be able to come into work and discuss the details of their sexual exploits. But why should straight people be allowed to go out to dinner with their partners, to have their partners' photographs on their desks, to use gendered personal pronouns when discussing their partners, when gay people cannot do so without fear of retribution?
11.9.2007 12:48pm
PGofHSM (mail) (www):
JLV,

I'm curious as to what kind of LGBT people you and the other ENDA opponents on this thread have worked with. My first interviewer for one job was gay, and certainly was at least as discreet about his sex life as were his colleagues. Both he and a straight man had events at their homes where their partners (the former's domestic partner, the latter's second wife) were present. Oh, so indiscreet! How dare he have employees in his home with his partner there? He should have at least pretended it was his brother!

The claim that LGBT folks in professional life behave in a way that would be socially unacceptable regardless of sex is simply one that I personally find unbelievable. If you can find a court case in which a gay person sued for discrimination, and the defendant put forward a plausible claim that the plaintiff was fired not for his orientation but for behavior that was simply unacceptable in the workplace, I'd find all the suppositions about "prancing in high heels" (actually a difficult maneuver, but knowing that would require some experience in wearing high heels) or talking about fisting at the office (really, something only acceptable if you work at an alt-weekly or some iteration of the sex industry) to be genuine concerns rather than the bogiemen created by people who are quite ignorant about LGBT folks aside from what they've seen on TV or at pride parades. (Behavior at pride parades is as good a predicate for LGBT folks' behavior in the workplace as the behavior of some men at bachelor parties is for all men's behavior in the workplace -- which is to say, very poor.)

BGates,

The remark about what happens in adulthood would be more cutting if it hadn't been preceded by a discussion of your summer job.

I don't know if you were the sort of person who went straight from college to law school with no intervening job experience, or if you just have no familiarity with the legal profession. But consider yourself hereby informed that many people nowadays work before they go to law school, and while in law school, they have summer jobs that allow employers to decide whether they would make good permanent employees. The More You Know.

If you wish to argue which of us is better at making a mature distinction between the type of socializing appropriate to the workplace, and the type of socializing appropriate to friendship and other intimate associations, try making that argument rather than assuming that because my most recent job was a summer associate position -- and because an ability both to make connections and to act appropriately in the office is more important and thus more relevant in the legal profession than in my previous jobs -- I must be 18.
11.9.2007 12:48pm
Barry in San Diego (www):
I've had one or more gay coworkers and/or supervisors at any given time throughout my adult life. I can't say I see any reason that targeting them for discrimination should be legal, when targeting someone for race, religion, disability etc. is not.

The only objection I really have to this is that it can be relatively easy to fake being gay, or to fake being perceived as gay.

Whatever the attorneys here think, most of us in the real world are quite aware of the perverse results of anti-discrimination law in the workplace. These include the fear of firing someone who clearly deserves it, because he/she fits in a protected class, as well as the fear or hiring someone who might someday be impossible to fire for that reason.

Now, one might argue that these results are acceptable tradeoffs, and I don't even want to start down that long road here. And an attorney might see laws of this sort as an economic good.

However, if there are perverse results when we have laws that put people in protected classes that are impossible to fake, what results might we see when we have a protected class that is easy?

I mean, the history of wrongful termination lawsuits shows that it is possible for at least some people to secure significant amounts of money, if only in out-of-court settlements.

Perhaps I should applaud this legislation, since, should I ever be fired, I can simply claim that I was perceived to be something other than 100% straight (whatever that means -- of course that changes radically over time and among cultures).

Maybe an attorney here can suggest how he/she/??? might prove to a jury that, actually, I'm straight, and nobody in the world would ever think for a moment that maybe I could possibly be a part-time bisexual, and therefore I don't deserve protection under this law. How would you do that, and would it do anything other than anger the jury if you tried it?
11.9.2007 12:53pm
Pluribus (mail):
Let's say I run a family business. I believe that homosexuality is immoral and I counsel my children (who work with me) against it. I also instruct them that all premarital sexual relations are immoral and that sexuality properly belongs in a monogamous, heterosexual, life-long union. Then, some cross-dressing flamboyant, in-your-face homosexual wants to work with me (and thus with my family), and I can't refuse him on account of his behavior?

Current anti-discrimination laws do not apply to "small" family businesses, and I don't think the new law would either. If I were you, and I wanted to inculcate my moral values in my children, I'd tell them what I believe is right, but reveal the fact that other people disagree, and it's OK to disagree. We don't try to pretend there are no such people, and we don't try to deny them a living just because of who they are.

But please--you wouldn't employ anybody who had pre-marital sex? Boy, would you be looking at a very small employment pool!
11.9.2007 1:01pm
Prufrock765 (mail):
jrose:
I would be very loathe to use the power of the national government in any area of private contract. But given the unique historical, political and moral dynamic--esp as it sat in 1964, I can fully understand and accept the prohibition against racial discrimination--although I have always believed that Ollie's Barbecue got a bit of a raw deal, constitutionally speaking.
Everything else should, at the very least, be left to the individual states.

As to your definition of "salient": would an "immutably" fat girl ("it's my pituitary gland...or "my diabetes" or "my genes" that makes me fat") be allowed to sue a modelling agency under your regime? (I am sure others can come up with even more useful realistic examples...)
11.9.2007 1:14pm
Cornellian (mail):
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.

It's a slow (sometimes glacially slow) grind and that slowness leaves some people behind but at the end of the day it's a better, more democratically legitimate and more permanent solution than winning cases based on constitutional law arguments, even when the latter are sometimes entirely legitimate arguments to make.
11.9.2007 1:18pm
JLV:
I'm curious as to what kind of LGBT people you and the other ENDA opponents on this thread have worked with.

PGofHSM:

You raise very good points. Please allow me to clarify my position by responding to them. Most gay people I have met are mature, professional, down-to-earth people. I once attended a gay boss' party (which he and his partner hosted), and there was nothing at all inappropriate about it. No high heels, no Boy George playing the background, and no handcuffs anywhere to be found (lest I seem derrogatory here, I'm making fun of the impression I seem to have given you about my perception of gays). On the other hand, I also worked for gay bosses (partners) where their homosexuality permeated the workplace and gay porn mags and videos were occasionally, accidentally found while looking for documents. I will readily admit that they were not typical of most of the gay people I have met.

Still, there are flaunting, repulsive gays, just as there are flaunting, repulsive heterosexual perverts. I don't want either in my workplace. Would I hire a gay person in my law firm if he did excellent work and was discreet about his sex life? Sure. Would I hire a straight person who did excellent work but was not discreet about his sex life? No.

But it all depends on the work environment. I believe that homosexual behavior is immoral. If the workplace were a place where the morality of employees is unimportant (e.g., a law firm), then I wouldn't "discriminate" on the basis of private sexual preferences. But if the workpace were a place where the morality of employees (no matter how private) is important (to me, that is, as the owner of the workplace) (e.g., in a family businss where my children work, in a religious charity mission, in a counseling organization that counsels from a particular moral perspective), then I believe I have the prerogative to refuse employment on the basis of private sexual conduct.

I further believe that I have the prerogative to deny employment in a workplace environment where private morality is unimportant, if I find the person's behavior sufficiently treacherous that I don't want to even associate with him (e.g., my example of the man who abandons his family to chase tail sans remorse).
11.9.2007 1:18pm
Cornellian (mail):
Perhaps you don't cite it because it found no relation between state and local ordinances and average earnings.

Actually I didn't cite it for two reasons, 1) I wasn't aware of it since I'm not in the habit of compiling or looking for discrimination statistics whether based on sexual orientation or some other ground and 2) I don't particularly care whether such legislation improves the overall wages of the protected category and I've never said otherwise in this thread. I wouldn't support repealing legislation prohibiting racial or gender discrimination just because someone came up with a study (even a persuasive one) showing that the average wage of the people in those categories wouldn't go down if the legislation were repealed.
11.9.2007 1:23pm
JLV:
Current anti-discrimination laws do not apply to "small" family businesses, and I don't think the new law would either.

Well, that answers some of my objections.

If I were you, and I wanted to inculcate my moral values in my children, I'd tell them what I believe is right, but reveal the fact that other people disagree, and it's OK to disagree.

No argument there.

We don't try to pretend there are no such people, and we don't try to deny them a living just because of who they are.

But please--you wouldn't employ anybody who had pre-marital sex? Boy, would you be looking at a very small employment pool!


I probably wouldn't deny employment on that basis (having been one who didn't make it to the goal line of marriage pure myself - regrettably so), but it depends on the business context and on how disgusted I am about the particular practice. Premarital sex, probably not. Yet, I believe that one reserves the right not to hire on this basis if he/she is really that concerned about it.
11.9.2007 1:24pm
Prufrock765 (mail):
PG of HSM...and others similarly situated:
I resent like hell the insinuation that opposition to ENDA must derive in some important sense from moral/social hangups about gay people.
When I applied to grad school, I needed 3 letters of rec. Two of my sponsors were out-gay and the other may well have been gay, but I don't know. I have an in-law who is a lesbian and living with a woman--my family loves her and she us.
This type of allegation is no better than the pro-Roe crowd using the "IF YOUR DAUGHTER GOT KNOCKED UP YOU'D BE PRO-LIFE TOO". Please....
I would not--and a decent person should not--discriminate against gay people. But that does NOT logically imply that the NATIONAL government needs to get involved in this issue by creating a private litigation remedy.
Again I am shocked at the extent to which the libertarians here have gone into the tank on this issue
11.9.2007 1:24pm
Ken Arromdee:
The "public" nature of governmental employment seems to be self-evident. When a company offers employment to members of the public; when its employees are covered by publicly-mandated unemployment insurance; Social Security; worker's compensation insurance; retirement programs; 401(k) plans, and similar governmentally mandated and/or governmentally financed programs, I think the public has a perfect right to prohibit discrimination.

All that this is doing is using government's meddling in one area as an excuse for it to meddle in another. You could just as well say that the government runs the police and courts, the existence of police and courts raises the value of my house, and therefore I may not refuse to invite a minority person inside my house because my house is government financed. The government is so omnipresent that anything at all is "government mandated and government financed".
11.9.2007 1:25pm
A. Zarkov (mail):
"But why should straight people be allowed to go out to dinner with their partners, to have their partners' photographs on their desks, to use gendered personal pronouns when discussing their partners, when gay people cannot do so without fear of retribution?"

I have yet to see any evidence that there is any retribution on any kind of national level in contemporary times. You have also not shown that the burdens of being discreet rise to a level requiring an act of the US Congress. This is all about the culture wars, politics and power, not employment protection.
\
11.9.2007 1:28pm
JosephSlater (mail):
Brett:

Re "consensus" or lack thereof among judges, sure, you're right that even if a lower court judge thought Title VII was unconstitutional, he couldn't hold it as such. But I don't see any even remotely significant strain in the real world of judging, politics, or otherwise, that believes that it is. Compare abortion, gun control rules, etc., where there are lively debates among the populace, elected officials, and disputes among courts.

That, of course, doesn't mean that the sliver of libertarians (or others) who contend that Title VII or other worker-protective legislation is unconstitutional are "wrong" in some objective sense. But they have been losing the battle for decades, and I don't think they will ever win. All trends are the opposite.

Barry:

Re faking being gay, a plaintiff would have to show not only that he was gay (imagine the depositions) but that he was fired for that reason. I see how that's easy to do. I also don't see why it's easy to fake that an employer *thought* an employee was gay and fired him for that reason. If it were that easy, wouldn't there be a bunch of bogus, say, religious discrimination claims? For that matter, Title VII protects everybody: whites, blacks, men, women, etc. -- a white guy doesn't even have to fake being a white guy to sue. Of course he, like any other Title VII plaintiff or plaintiff under a law barring discrimination on the basis of sexual orientation, would still have to show he was fired because of his membership in the protected category.

And as to your claim about what we all know in the real world, again, given that laws barring discrimination on the basis of sexual orientation already exist and cover about half the workers in the U.S., do you have any evidence that this is a real problem?
11.9.2007 1:32pm
JosephSlater (mail):
JLV:

If it makes you feel better, firing somebody because they leave porn mags around the workplace is not discrimination on the basis of sexual orientation (assuming the employer really would take the same action against heteros with hetero porn as with gays and gay porn).
11.9.2007 1:36pm
jrose:
Prufock: Everything else should, at the very least, be left to the individual states.

Why would a libertarian care (as a matter of policy, rather than constitutional law) whether it is the federal or state governments who impose anti-discrimination restrictions? From your answer, I take it you oppose gender-based, private-sector employment, anti-discrimination laws.

As to your definition of "salient": would an "immutably" fat girl ("it's my pituitary gland...or "my diabetes" or "my genes" that makes me fat") be allowed to sue a modelling agency under your regime?

No, physical attractiveness is salient to the job.
11.9.2007 1:36pm
JosephSlater (mail):
Barry:

Yikes, my second sentence to you should read "I DON'T see how that's easy to do."

The omission of negations kind of changes the meaning.
11.9.2007 1:37pm
Brett Bellmore:

But they have been losing the battle for decades, and I don't think they will ever win. All trends are the opposite.


All the trends are towards what the Constitution actually says ceasing to have any relevance at all to the way our government runs. The only question in my mind is when they're finally going to stop pretending.
11.9.2007 1:45pm
Barry in San Diego (mail):
Actually, I don't have personal evidence. Frankly, the many gay people with whom I've worked over the years have been good coworkers, bosses, whatever. There hasn't been a reason to fire them, in a case I can think of. No termination, no lawsuit. No poor job performance, no identifiable fear of firing them.

WRT state laws, though, they are surely not all worded in the same way, nor do they even include the same people in the class. In at least some cases, we'd be comparing apples with oranges.

But seriously, if someone actually believes that everyone who has received a settlement after accusing an employer of terminating him/her because of race actually WAS fired because of his/her race, I'm afraid we don't live in the same world. Out-of-court settlements don't require a plaintiff to actually prove wrongdoing as you describe. "Blackmail" is the slang term. Again, that's from the real world, not a law office.

Why no history of bogus religious discrimination claims? Perhaps because a perception that someone did belong to a certain religion is not specifically listed as putting him/her in a protected class?

You seem quite animated about this. I'm really more interested in the exact wording and application of the principle in question, in this specific bill; I'm not opposing the principle itself.
11.9.2007 1:46pm
Prufrock765 (mail):
jrose
I think that if we are talking about NATIONAL legislation, this is the type of vigorous discussion that should accompany a proposed gender-based, private employment, anti-discrimination law...yes. As far as which sovereign was acting: I said at the very least it should be left to the states; not that my state or any other state should pass such a law. But that the national government should be involved in something like this strikes me as unfortunate.
As far as the fat girl hypothetical--I didnt say she was ugly...I said she was heavy. Think Queen Latifah, if it helps. How is her weight salient to wearing clothes and walking in them and getting her picture taken?
And if your response is that the customer won't stand for a fat model (or a fat flight attendant, or whatever), then how is that any different from the fellow who owns a few hardware stores (with enough employees to be covered by this act) and whose customers object to being waited on by Carson from Queer Guy?
11.9.2007 1:54pm
JosephSlater (mail):
Barry:

I'm sorry if I seem animated in a bad way to you. But for what it's worth, I've had experience with anti-discrimination laws as an attorney in practice, as an academic studying it, and also now, in my role as Chair of my school's appointments committee, as an employer. So I do understand about out of court settlements and that plaintiffs don't actually have to win to get something.

But in order to get an out of court settlement of any significance in this area, plaintiffs do typically need to have a vaguely plausible case. And I don't think people can easily fake being gay or easily fake being fired because they were gay. For example, I've never seen a Title VII case settled without depositions, and I'm imagining questions to a person "faking being gay" during such a deposition.

Also, I didn't say there was no history of bogus religious claims. I said that problem in that area is no more worriesome than the problem of bogus sexual discrimination claims. I don't know of any evidence that there is a big problem in either, but I'm not the one making claims that laws protecting on the basis of religion or sexual orientation would lead to "blackmail" -- a term, I would suggest respectfully, would require some more evidence.

Finally, for the record, a plaintiff CAN win a religious claim if plaintiff shows that he was fired because the employer perceived that plaintiff was of a certain religion and fired the employee because of that perception. If I think you're Jewish, fire you solely because of that reason, you can sue me successfully under Title VII (assuming other requirments are met) regardless of whether you actually are Jewish or not.
11.9.2007 1:59pm
MRSA:
PGofHSM: "Hiring people ought to be a primarily economic consideration."

Says who? When I hire someone, I hire him/her/it based on any criteria I damn well choose. Take that right away from me, and -- well, at least have the decency to admit that you're taking a right away from me.


Alcyoneus: "Selecting a business partner is every bit as important and personal, and yes --- even intimate --- as deciding who to ask out on a date."

PGofHSM's snark aside, I think Alcyoneus gets it right. In a small, agile, innovation-based company you MUST get along with your (often eccentric) co-workers. And a disruption among co-workers is far more stressful than, say, a bad date.

I've worked in environments so "intimate" you didn't fret over whether you'd get invited over for dinner -- because you just had a day where you ate breakfast, lunch, and dinner with the whole team. Then went back to work for four more hours.


Cornellian cites "Harry Kay ... experienced harassment from many of his fellow employees. ... Co-workers circulated a petition stating: 'If you want this queer off the floor, sign here.'"

What are bosses for? Oh, man, if Kay were my employee, there'd be no Title VII involvement because I'd fire those a-hole coworkers so quickly, so publicly -- so mean -- that their heads would spin.


"the Third Circuit ... stated ...... 'our reach is limited by the scope of Title VII.'"

Ah, "our reach is limited." The four sweetest words government can ever utter.


Pluribus: "What besides blatant discrimination based on anti-gay prejudice justifies this kind of treatment?"

Um, the fact that I have freedoms and rights that need to be protected, too?

Pluribus, will you acknowledge that there are people who are not bigots, and who gladly hire gays/straights/bis/whatevers, yet who still resent government intrusion into what they feel to be a completely private decision? (I hope so, because I am one.)


Disclaimer: I work with start-up companies. I have zero interest in big dumb companies or government employers. My segment is not typical of American employers, nor is my region (Silicon Valley).
11.9.2007 2:05pm
Randy R. (mail):
"The number of groups that now become theoretically eligible for ENDA type protection boggles the mind. When it only takes a 3% demographic representation and good political juice...who's next?"

Good political juice? It took about 30 years to get ENDA passed from the first time it was introduced by Bella Abzug in 1973.

I have a problem with the 3% number. The number of men who are attracted in some fashion to other men is much, much higher. It's just very difficult to get accurate response rate. Larry Craig, for instance, swears he is not gay, so he falls into the 97% that is straight. Yet is out trolling for sex with other men. But civil rights should be available even to groups that even have only 1% percentage of teh population, right?

Again, everyone is complaining about the explosion of litigation that is supposed to happen with ENDA. Yet 20 states already have their own ENDA, and NOT ONE PERSON here has been able to point to any facts whatsoever that there are any problems at all for employers. If there are, give them. There are not, then you can stop the speculating.
11.9.2007 2:05pm
Randy R. (mail):
discrete: "From what I've observed, many gay men and women like to wear their homosexuality on their sleeves. They like to rub people's noses in it. They don't know when to shut up about it. If you kindly tell them, "Please don't discuss this, I'm not interested," they think they are being oppressed. It is not bigotry to prefer to mind one's own business. "

I agree! Man, I am SO sick and tired of heterosexuals wearing their sexuality on their sleeves. There are men who constantly talk about their wives, they have pictures of their wives on their desks, they talk about how "me and wife went to the theater last week," or "I had to visit my wife's mother this weekend." Sometimes, they even bring their wives to company functions! And to top it all off, they have the gall to wear a wedding band. It's like they are just laughing in my face.

I find this all an outrageous example of pushing their sexuality in my face, and I want to stop! Please be more discreet in your employment, okay?
11.9.2007 2:13pm
futureda (mail):
I wonder what Fred Thompson would think. He was accused of firing someone because she was gay on Law and Order.

Serena Southerlyn: "Is it because I'm a lesbian?"
Arthur Branch: "No, of course not, no."
11.9.2007 2:15pm
notafanofabzug (mail):
Bella Abzug was defeated in the Democratic primary by Daniel Patrick Moynihan when she ran for the U.S. Senate. Thank God.
11.9.2007 2:20pm
Randy R. (mail):
Zarkov: "The real reason for this legislation is not employment protection, but protection for an "in your face lifestyle."

Yeah, because living the gay lifestyle comes with such great benefits! You get thrown out of the house by your parents, you get beat up by other school kids, you get fired from jobs, your priest calls you immoral, the church turns it's back on you. This is why I chose the homosexual lifestyle -- why would I even think of being hetero?

It's pretty funny, though. Zarkov seems to think that all gay men are flamers. Didn't help you in identifying Larry Craig, though, did it? Afterall, by all accounts, he seems perfectly normal -- er, I mean, hetero.

How are you going to fire all those gay men who act so straight? I mean, you only have to go to Criag's List and you will find list after list of men who admit they are married or engaged or have a girlfriend but are looking for a blowjob from a gay man! Do you fire that guy, 'cause he's out having sex with men, but he would never consider himself 'gay'.
11.9.2007 2:24pm
Skyler (mail) (www):
Randy R., your attempt to flip the argument regarding heterosexual behavior does not work because heterosexual behavior is normal. But that was a discussion from a few months ago.
11.9.2007 2:25pm
Randy R. (mail):
Brett: "All the trends are towards what the Constitution actually says ceasing to have any relevance at all to the way our government runs. The only question in my mind is when they're finally going to stop pretending."

Would this be true for the 2nd amendment.....
11.9.2007 2:26pm
Randy R. (mail):
But Brett is, sadly, correct. Bush &Co. have been tossing out all sorts of constitutional gaurantees, like habeas corpus, prohibitions on torture, 4th Amendment rights.

The list goes on.....
11.9.2007 2:30pm
fdl (mail):
"How are you going to fire all those gay men who act so straight? I mean, you only have to go to Criag's List and you will find list after list of men who admit they are married or engaged or have a girlfriend but are looking for a blowjob from a gay man! Do you fire that guy, 'cause he's out having sex with men, but he would never consider himself 'gay'."

Yes, you're damn right I'd fire him. I do not want an employee who surfs Craig's List for sexual tricks (whether gay or straight). That's my decision to make, and not the government's to prevent.
11.9.2007 2:32pm
JosephSlater (mail):
Skyler:

Your opinion that homosexuality is not "normal" -- at least in the sense that "left handed" and "Jewish" are "normal" -- is hardly a "fact" that you can pretend responds to an argument. It is, I suppose, an opinion, but it's increasingly a minority one.
11.9.2007 2:35pm
Randy R. (mail):
Again, I find it so laughable that Zarkov can't believe that gays suffer from any discrimination in employment, when he makes it quite clear that he himself wouldn't hire any gay person. You think you are the only person who thinks this way? You are the exact type of boss we need protection from -- clearly, no gay person is going to get a fair and balanced evualation from you.

How do I know that? You keep harping on the 'gay lifestyle.' I have never met anyone in my life who uses that phrase and doesn't also hate gays as well. These people have a stereotype in their head, that gay men are sexual predators, effeminate, flamboyand, want to recruit samll cute children, *choose* to be gay for some -never-explained reason, and want to utterly destroy Our American Way of Life. Anyone who is convinced that ENDA is merely a way to protect and promote our 'lifestyle' pretty much fits the bill.

So, no, Zarkov -- we write you off as a lost cause. Just like in the past when there were whites who thought that blacks are sexual predators, thieves, lazy and shiftless, there is no reasoning with you. No amount of evidence will convince you that your irrational (yes, unbalanced and irrational) hatred of gays is pointless. You would rather conjure up straw men to fight than to see that all gay people, like all whites, blacks, asians, jews, christians are people -- some good, some bad. But people need to be judged, if at all, as individuals. Some can be trusted, some can't, but it has nothing to do with the color of their skin, their choice of religion, or their sexual orientation.

But of course, you will disagree.
11.9.2007 2:38pm
noname (mail):

Randy R., your attempt to flip the argument regarding heterosexual behavior does not work because heterosexual behavior is normal. But that was a discussion from a few months ago.


Normal in what sense? Majority? Sure, but that's not the same thing. But "normal" is normative (hey look at that! etymology!) judgment and, in situations like this, quite likely to be a moral one. There are plenty of people who think that homosexuality is normal, as well.
11.9.2007 2:38pm
Ramza:

Randy R., your attempt to flip the argument regarding heterosexual behavior does not work because heterosexual behavior is normal. But that was a discussion from a few months ago.

Please announce which definition of normal you are using, are you using common? If so homosexuality from a statistical standpoint is very common.

Are you using natural? If so see the post that Eugene posted here. I Don't Think That Word Means What You Think It Means as well as many other posts that commentators have made on whether homosexuality is natural or not.www.

Are you saying homosexuality is a mental disease or some flaw? If so the APA will disagree.

I doubt you refer to planar mathematics or chemistry. So it is probably safe to say you aren't using that definition of normal.

Are you trying to create a social standard of what is allowed and what isn't? If so is homosexuality is "normal" is a dependent on the person.

So what do you mean?
11.9.2007 2:38pm
Prufrock765 (mail):
A quick search yields the result that there are about as many homosexuals in America as there are Polish-Americans, or people living with fibromyalgia. I stand by my assertion that the political strength of the homosexual rights lobby is disproportionate to their number. This is not 1973.
There are no doubt many numerically larger groups that can now legitimately ask for dispensation under the employment discrimination law. How do we refuse them?
11.9.2007 2:38pm
Pluribus (mail):
MRSA asked:

Pluribus, will you acknowledge that there are people who are not bigots, and who gladly hire gays/straights/bis/whatevers, yet who still resent government intrusion into what they feel to be a completely private decision? (I hope so, because I am one.)

Absolutely. And if that is your attitude, I say congratulations. If everybody had your attitude, there would be no need for anti-discrimination legislation, and we wouldn't be having this argument.

(BTW, I try not to use words like "bigot." I don't think I have here. If anybody can show the opposite, I apologize in advance.)

I am old enough to remember when legislation banning racial discrimination in housing was first enacted. At the time, I thought it was a shame that the government had to mandate who could and who could not find a place to live. I believed in private property rights (as I still do), and I resented the government interfering with the use of private property. Then I learned about some really egregious cases of discrimination against blacks in housing and other accommodations (in Berkeley and neighboring Oakland, California), and I concluded--hey, that isn't right, people shouldn't treat other people like this, it's mean, it's hurtful, and there's no justification for it. There "oughta be a law." (The law back then was called the Unruh Act.)

If there were no discrimination against gays or blacks, we would have no need for the Unruh Act or a law like ENDA, and I'd say great. But if the posts on this thread are any indication, there is still a widespread disposition on the part of many people to discriminate against people on the basis of their sexual orientation. It's mean, it's hurtful, and there's no justification for it. That's why I support the law.
11.9.2007 2:41pm
Mark Seecof:
Responding to Mark Seecof...



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."


Thanks, Prof. Carpenter, but perhaps you should really read up on the effects of earlier civil rights laws.

As you must know, the 1964 Civil Rights Act (Title VII) also contains broad and clear language forbidding quotas which ENDA's language emulates, yet quotas for Title VII groups have been imposed anyway with the acquiescence (sometimes full approval) of the courts.

It's common knowledge that employers, threatened by the EEOC and the courts with severe punishment for statistical anomalies in hiring of potential Title VII plaintiffs, implement their own quotas defensively. Sometimes these are called "goals and timetables." Sometimes they have no name at all, because the government has taught employers (and for that matter, educational institutions) that they mustn't write down policies in this arena, but rather pass them on orally so that "reverse discrimination" complaints can be dismissed for lack of evidence (go look at Gratz and Grutter again).[1]

(Fear of Title VII sanctions also affects employers' relations with employees after hiring. Employers handle potential Title VII complainants with kid gloves, privileging them over other employees. That generates a fair amount of resentment. If enacted, ENDA would foster resentment against gays and lesbians by the same mechanism.)

As for the proposed Sec. 9 of ENDA, there's no reason to think it would protect employees from employer snooping because by its terms it only restricts certain actions of EEOC. ENDA plaintiffs would subpoena "statistics on actual or perceived sexual orientation" and the courts would compel employers to provide such data. Soon enough major employers would demand and tabulate such data defensively. And even EEOC would end up with the data, after construing Sec. 9's restrictions very narrowly (e.g., EEOC won't "collect" the data, merely accept voluntary submissions of same, or merely inspect employers' data on-site. Or EEOC won't "compel" collection, merely allow employers to provide data if they wish to show an EEOC complaint is unfounded, or EEOC won't "compel," it'll ask the District Court to compel. U.s.w.)

I'm sorry if this rejoinder seems a bit snarky, but I don't see why you thought it proper to insult me by suggesting that I haven't read up on the matter, or why you should insult all of us by suggesting we should believe: (a) that ENDA would be enforced differently than Title VII (when the ENDA bill says (Sec. 10 and other places) that it should be enforced in basically the same way); (b) that ENDA would not coerce quotas when Title VII did exactly that (explicit language to the contrary notwithstanding); (c) that partisan "fact-finding" by a Congressional committee is the last word on a controversial subject (especially reports in support of rent-seeking legislation like ENDA); or (d) that bureaucracies like EEOC wouldn't apply their standard methods to new areas of authority!

I'm grateful for the privilege of commenting here at the Volokh Conspiracy. I appreciate the willingness of Conspirators to engage with commenters. I feel that I learn a lot here. But frankly, I'm not learning much from you on this subject. Do you really expect literate, engaged people to believe that ENDA would be cost-free (except, you suppose, to bigots)?

[1] I don't think employers are wicked for adopting racial quotas despite contrary language in Title VII. What else can they do? They are liable to prosecution if they don't! I do think EEOC and the courts are wrong for imposing quotas in defiance of the law. But really, no one ever expected anything different. It was obvious from the git-go that "statistical" enforcement was the key to getting results under Title VII because proving specific discrimination in individual cases would become prohibitively difficult soon after Title VII took effect (as employers dropped openly biased policies and taught their managers how to talk nice).

I do think it came as a surprise to everyone that eradicating discrimination was insufficient to bring about statistical parity in the workplace. In 1964 our society was unaware that people of various races, freed from discrimination and even given deliberate boosts, would reach high levels of academic achievement to qualify for top job categories in different proportions. Now we know this problem exists (look at Richard Sander's work, which has been discussed more than once by Conspirators), but many people don't want to admit it. Strict statistical enforcement of Title VII necessarily implies quotas, because choosing among job applicants strictly on the basis of academic (-type) qualifications (with no reference to color or any proxy for it) would inevitably produce a workforce in which certain races were "underrepresented" because fewer people of those races are competitively qualified.

People specifically protected by ENDA might not present the same problem of differential qualifications, but over forty years American government agencies, courts, and employers (plus educational institutions) have evolved, elaborated, and internalized a complex, quota-based methodology for enforcing or complying with civil-rights laws. ENDA by its own terms calls for the extension of that existing system. Far and away the most likely result is that people of ENDA concern would be treated in exactly the same way as people of Title VII concern.

DC: It appears you still have not read the bill or the committe report linked in the post, so I'm not sure there's much value in continuing this exchange. I have never claimed that ENDA is "cost-free," but there are many, many differences between Title VII and ENDA that make ENDA a much narrower statute. In fact, this was one reason many gay groups objected to ENDA.

One big difference between ENDA and Title VII is that the latter permits disparate impact claims, a defense to which would be the presence of a proportional number of people in the covered group. ENDA explicitly forbids not only quotas and preferential treatment but also disparate impact claims. The only ground for a claim is disparate treatment, direct evidence of discrimination.

As for the committee report, until you read it and the studies it relies upon, you can't fairly assess its claims about the prevalence and effects of sexual-orientation discrimination.
11.9.2007 2:43pm
Skyler (mail) (www):
It all keeps coming back to this: If this becomes law then you can't fire someone if they look like they are homosexual without overcoming a presumption of guilt, but you can still fire anyone else "for a good reason, a bad reason, or no reason at all."

Homosexuals do not merit this special privilege.

The end result is that it is about to become a lot harder to get a job if you look like you're a homosexual. It's a lot easier to justify not hiring someone than it is to document all the reasons you need to fire him. If this law is enacted then many employers who didn't care about sexual orientation now are going to think twice about it before taking on that liability.

So this won't help homosexuals in the long run.
11.9.2007 2:44pm
Pluribus (mail):
Prufrock765 wrote:

A quick search yields the result that there are about as many homosexuals in America as there are Polish-Americans, or people living with fibromyalgia.

To the best of my knowledge, it would be illegal to discriminatie against Polish-Americans or people with fibromyalgia, assuming that neither their Polishness nor their fibromyalgia prevented them from doing their job. Do you think it's OK to discriminate if the group is small enough?

I stand by my assertion that the political strength of the homosexual rights lobby is disproportionate to their number.

So they are are a small group but not weak enough for your taste, eh? If they have strength, it is not from numbers. Maybe it's the justness of their demands.
11.9.2007 2:49pm
Brian K (mail):
I stand by my assertion that the political strength of the homosexual rights lobby is disproportionate to their number. This is not 1973.
There are no doubt many numerically larger groups that can now legitimately ask for dispensation under the employment discrimination law. How do we refuse them?


I wonder, do you apply this logic to everything? or just groups that you don't like?

for most most of the 21st century, republicans have controlled all branches of the government depsite being only about half of the population. did you call for the president to step down and a democrat put in his place? or for one of the houses to be put into democratic control? the neocons currently have disproportionate influence in the government, so have you called for an end to all of their policies? how about the judiciary? should that be balanced with respect to groups political influence? no? well why not?
11.9.2007 2:59pm
jrose:
Prufrock,

Was that a "yes" or "no" to support of national legislation on gender discrimination? State legislation.

It's not just that the customer prefers a beautiful model (or flight attendant, or straight sales person). The product itself looks better on a beautiful model. I don't see how that applies to the flight attendant or sales person.
11.9.2007 3:01pm
Cornellian (mail):
The end result is that it is about to become a lot harder to get a job if you look like you're a homosexual. It's a lot easier to justify not hiring someone than it is to document all the reasons you need to fire him. If this law is enacted then many employers who didn't care about sexual orientation now are going to think twice about it before taking on that liability.

So this won't help homosexuals in the long run.


Much the same argument has been made against every category currently protected by Title VII yet somehow blacks, women etc still manage to get hired even though they're a lot easier to identify at the interview stage than gay people. It's funny to contrast that with the earlier post that ENDA is a bad idea because it's "common knowledge" that employers now hire people from protected categories in a self-imposed quota system in order to avoid lawsuits. So it's a bad idea because they'll either get hired too often or not at all.
11.9.2007 3:06pm
Skyler (mail) (www):
Cornellian, just think how many people in those categories would get better jobs if it weren't for such legislation.
11.9.2007 3:18pm
Brooklynite (mail) (www):
When I work, I don't talk about my sexual life. I don't wear it on my sleeve. It's no one's business but my own (and my wife's).

In other words, you don't wear your sexuality on your sleeve, you wear it on the ring finger of your left hand.
11.9.2007 3:21pm
JosephSlater (mail):
Cornellian makes a point I once made in an earlier thread on this topic. It's odd how opponents of employment discrimination laws insist both that the laws will result in fewer folks in the protected category being hired (because they are supposedly so hard to fire) and that employers will be forced to hire lots of unqualified folks in those categories.

I'm also pretty confidant that there are more employers actually discriminating against women and blacks than there are employers fearfully adopting some implict quota for hiring certain numbers of them.

But again, all these parades of horribles about what laws protecting gays and lesbians from employment discrimination will do might be more convincing if there were some data supporting those predictions from the massive swaths of employees in the U.S. currently covered by such laws.
11.9.2007 3:23pm
Prufrock765 (mail):
Brian K and others:
I was not saying that we should ignore the homosexual rights lobby because they are not large enough.
I was saying merely that the employment discrimination laws only provide dispensation to certain favored groups. The list of favored groups continues to grow. Thus the reach of the national government continues to extend ever further (this is something about which I presumed libertarians would be especially vigilant).
The demographic argument was meant to illuminate the point that there must be many other more numerous "discrete and insular" groups who can now sharpen their lobbying knives and prepare to get their slice of the anti-discrimination pie. I used the example of fat people earlier. Others can, I imagine, come up with further examples.
11.9.2007 3:33pm
Pluribus (mail):
Skyler wrote:

Homosexuals do not merit this special privilege. . . . The end result is that it is about to become a lot harder to get a job if you look like you're a homosexual.

Do you detect just a little internal inconsistency here? Do you mean that it's a special privilege to have a harder time getting a job? Oh, yes, very special. Gays and lesbians will just love that. (Why don't you think this one through again, Skyler.)
11.9.2007 3:38pm
David M. Nieporent (www):
When a company offers employment to members of the public; when its employees are covered by publicly-mandated unemployment insurance; Social Security; worker's compensation insurance; retirement programs; 401(k) plans, and similar governmentally mandated and/or governmentally financed programs, I think the public has a perfect right to prohibit discrimination. At that point, it's no longer private--it's public.
That doesn't make any sense. How does the fact that employees have to pay taxes convert an employer from a private person to someone owned by the state?

(And if so, how did you conclude that small employers, household employers, or religious employers are not public?)
Do you oppose zoning laws because they restrict the way people can use their private property
Yes.
11.9.2007 3:39pm
Pluribus (mail):
JosephSlater wrote:

It's odd how opponents of employment discrimination laws insist both that the laws will result in fewer folks in the protected category being hired (because they are supposedly so hard to fire) and that employers will be forced to hire lots of unqualified folks in those categories.

You've detected the same thing I have detected, Joseph. Consistency is not their strong suit. They are against equal rights for hated minorities simply because they hate those minorities. Their arguments are mostly rationalizations and easy to poke holes in. (I except, of course, those who make general arguments against government intereference in private conduct, irrespective of the particular group in question. Principled libertarians are examples of the latter.)
11.9.2007 3:47pm
Brian K (mail):
prufrock,

The demographic argument was meant to illuminate the point that there must be many other more numerous "discrete and insular" groups who can now sharpen their lobbying knives and prepare to get their slice of the anti-discrimination pie

you act as though something has changed as a result of ENDA. nothing has. legislation of this sort as been around for at least 50 years and fat people have been around ever since there was food. shouldn't they already have protection by your logic? or would the more rational explanation be that these other aren't discriminated against on the same scale as homosexuals are and thus there is no reason to protect them?
11.9.2007 3:50pm
Prufrock765 (mail):
jrose
As to whether I would support legislation in my state banning gender discrimination, that is wholly irrelevant to my argument, but I will play along and say that I would not care greatly one way or the other if my state did that. It would probably be a bad idea, especially at this time in history, to pass such a ban. But life is short and one only has time for so many arguments.

As far as zoning laws: I applaud David Nieporent's purity but the example is inapposite and one needn't go that far. If Congress were to pass a national zoning law, I would be against it.
11.9.2007 3:51pm
A. Zarkov (mail):
Randy R:

"Again, I find it so laughable that Zarkov can't believe that gays suffer from any discrimination in employment, when he makes it quite clear that he himself wouldn't hire any gay person."

If it's so obvious then give us the evidence. Just stating what you believe true does not provide evidence. Even if it were true (and it's not) that I wouldn't hire a gay guy, that would prove nothing as I'm just one person. If the problem is as pervasive as you assert, then the evidence should be easy to come by.
11.9.2007 3:55pm
Pluribus (mail):
I asked:

Do you oppose zoning laws because they restrict the way people can use their private property?

David M. Nieporent answered:

Yes.

OK, David, you are consistent and principled. I favor zoning laws and anti-discrimination laws. Will you concede that I am consistent and principled?

When zoning laws are wiped off the books, I will concede anti-discrimination laws should also be repealed. I won't hold my breath waiting.
11.9.2007 3:56pm
Prufrock765 (mail):
Brian:
Sorry, I am having trouble understanding your last comment.
Are you saying that ENDA "changes nothing" vis-a-vis "fat people" or....what?
Fat people have long been derogated and discriminated against. 40 years ago, no one would have dreamed of making fat people a victim class for federal civil rights law. That is my point. After ENDA, there is no principled reason for denying fat people (for example) the same type of remedy now afforded homosexual people.
And anyway..."fat people" is just one example that leaps to mind...there are probably other better ones.
I think this is called "rent-seeking".
11.9.2007 4:01pm