For the second time, and now with extra language for trans-gendered people, the Senate has passed the Employment Non-Discrimination Act, which would in essence extend Title VII employment protection to subject matter areas of sexual orientation and gender identity. Regular readers of my work here will be unsurprised to learn that I applaud the Senate’s action and urge the House to similarly pass ENDA so that the President can sign it because there is no good reason I can think of to regulate against racial and sex discrimination in employment but not to regulate against sexual orientation and the related issues.
While conservative advocacy groups and magazines (note similar provenance for their similar verbiage) call ENDA an attack on traditional social norms, an erosion of civil liberties, and a job-destroying impingement on the free market, Speaker John Boehner has a different objection to the law, which is that it is unnecessary and would create a basis for frivolous lawsuits. “People are already protected in the workplace. I am opposed to continuing this.”*
I periodically teach employment law to college students or master’s candidates as an adjunct; I have such a class underway right now, and as usual, my graduate school students are quite surprised to learn that Federal law, and the law of the majority of states, provides no protection to adverse employment actions taken on the basis of sexual orientation. They are not alone — nearly three-quarters of all Americans mistakenly believe that existing anti-discrimination law already applies in this arena.
And there is a reason that I teach the unit on discrimination based on LGBTQ issues at the same time that I teach the unit on religious discrimination issues — both LGBTQ and religious identities are not necessarily obvious to the casual observer.
Consider an a typical worker, whom I shall call “Sally.” Let’s say Sally works at an auto dealership. If you look at Sally, you can tell that she appears female and you can make a rough classification about her race based on skin color and a handful of other physical characteristics. If you talk to her, you might discern an accent and make an educated guess about her national origin, which sometimes dovetails into race.
But you can’t tell, at least not without Sally having adopted any of a number of cultural signals in her personal appearance or demeanor, if Sally is straight or gay or bisexual etc. This seems to me to be very much like the way you can’t tell just by looking at Sally whether she’s Jewish or atheist or Buddhist etc.
So when adverse employment actions are taken by an employer, there have either been assumptions made based on cultural signals (“Sally sure wears Birkenstocks and baggy pants a lot! And she has lots of dogs at home. Hmm. Maybe she likes other women.”) or there has been some sort of personal disclosure made (Sally invites you to her Bible study group after work, and smiles sweetly when you say no thank you).
I also teach these subjects at the same time because they are the ones that seem most likely to clash with one another in today’s environment. Many religions teach that homosexual behavior is immoral, which translates into a prejudice that gay people are immoral. Personal psychological discomfort about homosexuals or homosexuality is not protected under the law. But a religious belief that homosexual conduct (or, by extension, homosexuality) is immoral behavior is protected by the law.
Employers sometimes have strong and sincere religious beliefs that they should not countenance homosexuality because it is (according to their religions) inherently immoral, so they develop a distrust of homosexual employees that often enough dovetails in with their own psychological discomfort. It shouldn’t take a lawyer to figure out that such an environment is ripe for employment law disputes.
Finally, I teach these subjects in conjunction because my students are going to go on to become managers and human resources professionals. I see, as an employment lawyer, the kinds of complaints that come through my door, and I want to prepare my students to meet the kinds of challenges that the real world will throw at them. The lines aren’t particularly clear in all permutations of the cases. And where the law is unclear and there are lots of people with potential claims — well, that’s a place where professionals must be prepared to tread, decisively, but also carefully.
And because these are non-obvious traits about a person, they must be particularly circumspect about how they intervene, for intervene they must.
The fact that the leader of the Republicans is using the common if mistaken belief that such protection already exists as his primary argument demonstrates why the law is unnecessary tells me that ENDA is, at minimum, acceptable to the American people as a whole. There aren’t all that many people calling for the repeal of employment protections for LGBTQ people, any more than there aren’t all that many people calling for the repeal of employment protections for discrete racial groups.
Indeed, in every state in the union, at least two-thirds of the population supports the idea that it is wrongful to discriminate with respect to employment based on sexual orientation or gender identity. I point out a humorous sketch from The Daily Show in which actors were hired to portray a gay couple traveling through Alabama and Mississippi, with one man proposing marriage to the other in two functionally identical Waffle Houses — to the general disinterest, if not light applause, of their fellow covered-smothered-diced-capped-omelet-eating patrons. Sure, Al Madrigal plays it for laughs (and I suspect that super-statistician Nate Silver was in on the joke the whole time), but it does indicate that a whole lot of real people seem to have figured out that teh Ghey is generally not a matter for any particular anxiety when encountered in the real world.
And I can say from apocryphal experience advising lots of employers, lots of employees, and teaching lots of students, that nearly everyone I meet, of all political stripes, agrees that whether or not someone is gay is pretty irrelevant to whether they should get or keep a job. (This apocryphal experience conforms exactly to my own personal preference that there ought not to be discrimination against LGBTQ folks, so this constitutes effectively dispositive proof of my correctness on all facets of this issue.) Do Americans need ENDA to be the law? Maybe, maybe not, but it seems we want ENDA to be the law.
But contrary to popular belief and John The Orange‘s deceptive insinuation, ENDA isn’t the law.
I live in California, which extends anti-discrimination protection in this arena. We don’t need ENDA in California. I have FEHA, one of the broadest and most pro-employee human rights laws of all fifty states, to protect my LGBTQ clients. I have FEHA to advise my employer clients. Even the ones that are unhappy about the substance of the law, I can say to them, “I’m sorry you feel that way, but this is the law in California,” and they nod their heads sadly, say a few nasty words about “Governor Moonbeam” (even though he hasn’t been at all moonbeamy in this most recent third term as Governor), and they ask me how they can comply with the law.
This tells me that when there is a statute on the books, and not just case law that lawyers have to interpret, society can get buy-in to non-discrimination from all but the most entrenched of employers.
Now, is there more employment litigation in California than in, say, neighboring Arizona? I suspect so — Arizona lawyers simply aren’t filing sexual orientation discrimination cases because sexual orientation isn’t actionable there. Speaker Boehner raises the spectre of a flood of litigation, which he calls “frivolous lawsuits.” It’s easy to describe a lawsuit as “frivolous” when it’s a hypothetical and abstract proposition. Not quite so easy once you start filling in some facts. A claim for sexual orientation discrimination isn’t necessary frivolous, at least not in a jurisdiction like, say, Illinois, which recognizes such a cause of action.
But in Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming, Sally’s employer (remember Sally?) can say, “Sally, you say you’re gay? Then you’re fired,” and there is nothing legally wrongful about that whatsoever.† The employers in those states have no reason not to say, “I’m just not comfortable around gay people and I don’t want them around me and I don’t think my customers do, either.”
I find that state of affairs unacceptable, and I damn Speaker Boehner — who undoubtedly knows better — as a sophist of the first order for saying that a law which the American people seem to want, think is already in place, and which addresses a fundamental unfairness in our society is somehow “unnecessary.”
Put it to a vote, Mr. Speaker.
* To be fair to Speaker Boehner, what he seems to be opposed to continuing is extending protections to more classes of people than are already protected; he does not seem to be advocating rolling back existing workplace protections, although if his quote were taken out of context one might interpret it that way.
† Lo these many years ago, I turned down a wrongful termination case back in Tennessee with pretty much that exact fact pattern — the would-be plaintiff was simply convinced that the law already protected him, wanted his remedy, and he was quite upset to learn that the law was on his former employer’s side. Quite upset. A substantial portion of his anger was frustration at having been wrong about what he thought the law was. Can’t say as I blame him.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.