The Employment Non-Discrimination Act (ENDA) to protect the LGBT community has passed the U.S. Senate and is pending in the House. Opponents say the bill would punish religious employers, and may well lead to nationwide gay marriage.
But I have stopped supporting ENDA mainly because of a different, rarely discussed problem: our country lacks a single standard for banning job discrimination. Right now, under federal law, an employer cannot disfavor applicants and workers based on race, color, religion, sex, national origin, or disability – and, if ENDA becomes law, sexual orientation and gender identity.
Take, for instance, the unemployed, who often face unfair obstacles finding work. For example, some business owners brazenly post help-wanted ads stating that the jobless need not apply. Since 2011, President Barack ObamaBarack ObamaJuan Williams: Race, Obama and Trump Obama on '60 Minutes': A president needs 'thick skin,' 'stamina' Trump should’ve Googled John Lewis before he Tweeted MORE has supported legislation stalled in Congress to bar excluding unemployed workers from hiring consideration. Obama explained on Tom Joyner’s radio show that he wants to protect people “who, through no fault of their own, ended up being laid off because of the difficulty of this recession.”
Passing the unemployment-discrimination bill – or, for that matter, ENDA – would only continue the broken system of augmenting the protected list piecemeal. Rather, we need a moratorium on new anti-discrimination laws until we adopt consistent criteria determining who gets included. Congress could easily expand anti-bias protections to cover everybody – in lieu of appending one group at a time (with the relatively privileged going first).
Professors Sheila Kennedy and Richard Magjuka of Indiana University-Purdue University Indianapolis have proposed a version of the “Model Employment Termination Act” that replaces the “group identity” list of protected categories with a single productivity-based standard for termination, with guaranteed access to arbitration for employees who feel wrongfully fired.
A more conservative approach comes from openly gay law school professor Dale Carpenter of the University of Minnesota Law School. Carpenter said he’s not a big fan of any non-discrimination laws, because “they get in the way of efficient labor markets, encourage frivolous litigation, and increase costs for everybody. The broader the law, the worse it is.” Carpenter would only support specific antidiscrimination protection for the most discriminated-against groups in American history.
Somewhere between those two extremes, Congress could simply gut ENDA (whose name doesn’t specify its scope) and replace its language altogether with uniform provisions protecting all Americans from biased treatment. Creative legal minds could certainly construct a consistent, practical, and truly fair ENDA.
Perhaps one already has.
In an E-mail, Prof. Andrew Koppelman of Northwestern University Law School and author of “The Gay Rights Question in Contemporary American Law” suggested the following standard: “A group should be protected if it is the object of pervasive discrimination that causes its members severe economic harm.”
Sounds good to me.
Hold on, one might say, can’t we just pass the current ENDA and deal with other problems later? Such a plea would echo former slave and abolitionist Frederick Douglass on women’s suffrage, which he supported. In 1868, he told women that racial issues were “more urgent” so they would have to wait their turn. (Women didn’t win the vote until 1920.)
The gay and lesbian community has overwhelmingly rejected Douglass’ me-first attitude. Nearly every LGBT organization refused on principle to support an earlier, weaker ENDA that had more congressional support – but that didn’t cover gender identity. As gay activist Wayne Besen told The Nation, “I have trouble with the argument that equal rights is just for me. It’s not. It’s for everybody.”
So by the LGBT community’s own logic, we cannot pass ENDA as long as the most vulnerable Americans still suffer daily discrimination. For decades, gay people have correctly denied that they’re seeking “special rights.” Hence it’s hypocritical for gays to back their own bill while ignoring employment-status and income bias. Unless, of course, gays and lesbians just don’t care about those less fortunate than themselves, which I know isn’t true.
I don’t mean to frustrate ENDA supporters who can finally taste a long-sought victory. But as Dick Cheney said about same-sex marriage, “Freedom means freedom for everyone.” Doesn’t it?
Benkof is a teacher and freelance writer. In the 1990s, he campaigned for ENDA on behalf of the largest gay political group, then called the Human Rights Campaign Fund. He can be reached at DavidBenkof@gmail.com.