The Employment Non-Discrimination Act (ENDA) will likely pass the Senate after it won a procedural vote Monday. The bill would “ban sexual orientation or gender identity discrimination in most workplaces,” as BuzzFeed’s Chris Geidner puts it. But it is at best a tall order to pass the House of Representatives, where Speaker John Boehner came out even before the final Senate vote Monday to express his opposition.
Par for the course. It is not a news flash that Republican lawmakers are a bit lacking in the respect department when it comes to LGBT citizens. But the stated reasoning behind Boehner’s opposition to ENDA astonished me, and the fact that it hasn’t received more attention astonishes me nearly as much. According to Boehner’s spokesperson, “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.” And that’s why he’s against it.
This line of reasoning is incredibly retrograde. I don’t see why it shouldn’t dictate Boehner’s—and, by extension, the House Republicans’—opposition to all legislation banning workplace discrimination, including against women, minorities, and people with disabilities. Such legislation is, of course, on the books.
All anti-workplace discrimination laws surely increase litigation, and nearly as surely increase frivolous litigation—when you give people the right to sue, there is a good chance the occasional one will sue disingenuously. For that reason and for a variety of other reasons, it costs businesses—“especially” small businesses—more money to comply with more regulations, which in turn puts a small crimp on available funds, in turn, yes, costing American jobs. Boehner is right about that.
But. We have decided it is worth it to us to pass these laws, despite the above drawbacks, because banning discrimination leads to benefits both economic (expanding the pool of workers and making things more meritocratic should increase productivity) and moral (being a society that doesn’t unjustly discriminate is a bipartisan commitment, or so I’d thought).
The Heritage Foundation offers a more expansive argument against ENDA. The problem, it argues, is that the new “protected classes” the bill would create—namely LGBT citizens—are “based not on objective employee traits but on subjective and unverifiable identities.” Also, the problem with these traits is that “sexual orientation and gender identity are used to describe behaviors as well as identities, and sometimes it could be reasonable for businesses to consider the impact of behaviors at the workplace.” But, like gay people versus straight people, women are liable to engage in behaviors that men do not (get pregnant, for instance.) And, as with transgender people, a person who is half, or one-quarter, or one-eighth a member of a protected ethnic minority has a “subjective and unverifiable” identity, because on some level you are taking that employee’s word for it. (We are not breaking out calipers or anything, yes?) In other words, if you follow Heritage’s reasoning, as with Boehner’s, we should get rid of all anti-workplace discrimination legislation, as all impose undue burdens on employers.
The alternative is to believe that Heritage simply does not extend to LGBT citizens the same esteem it does toward other citizens. I suspect that’s what it is—and, given the alternative, I actually hope that’s what it is! As for Boehner, I wonder if he understands the implications of what he’s saying. And I wonder if the press, which has barely noticed this, does as well.