With the Democrats in control of Congress, it was inevitable that a new push to pass the Employment Non-Discrimination Act (ENDA) would occur. ENDA would add “sexual orientation” to race, sex, age, etc. as a basis for a federal prohibition against employment discrimination, in both the public and private sectors. In its latest incarnation, the legislation would also outlaw discrimination based on “gender identity,” defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”
As Roger Clegg explains, ENDA has always been a bad idea, and the current version is even worse.
Employers are unlikely to fire or mistreat gay employees who are performing their job acceptably — the cost, inconvenience, and replacement risks associated with firing such individuals or not making them welcome all provide an incentive not to discriminate. And unlike with blacks and females, employers rarely are in a position to discriminate against gays in hiring because they don’t know the sexual orienation of applicants (although, as defined in ENDA, I suppose they might be able to figure out “gender identity” in some cases).
That’s not to say that gays never experience employment discrimination. But absent evidence that such discrimination is widespread enough to make it difficult for gays to compete in the job market as a whole, the justification is lacking for (in Clegg’s words) “the inevitable specious suits, the enforcement expenses, the dubious regulations – and the important costs of enacting yet another federal law of dubious constitutionality that violates free-market, freedom of association, and federalism principles.”
As a lawyer who sometimes defends employment law suits, though, I suspect that ENDA cases would be interesting to litigate.
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