Where will it all ENDA?

Today, the Senate is expected to vote on the Employment Non-Discrimination Act (ENDA), a bill to “prohibit employment discrimination on the basis of sexual orientation or gender identity.” Whatever the Senate does, the House almost certainly won’t pass the legislation.

Thus, in a sense, the Senate vote is symbolic — a chance for Democrats to tempt Republicans into taking an increasingly unpopular position and a chance for some Republicans to soften their image. But the merits (and/or demerits) of ENDA are nonetheless worthy of our consideration.

In my view, workplace discrimination based on sexual orientation should be just as illegal as discrimination on the basis of race or gender (i.e., discrimination against women). But this doesn’t settle the ENDA question for me because I doubt that, at this point in our history, the federal government should ban race and sex discrimination in employment.

Discrimination against Blacks and women is a deeply irrational practice. There was a time when such discrimination was common nonetheless, due to deep-seated prejudices. In my view — based on 35 years of involvement, to one degree or another, in this area of the law — that time has passed. Real employmnent discrimination (as opposed to discrimination invented by legal constructs such as “disparate impact” theory) against Blacks and women (with the exception of sexual harassment) is rare now.

This doesn’t mean that such discrimination is non-existent. But for me it means that the federal ban is problematic, given its costs — e.g., the cost of defending claims; the cost of deflecting claims (e.g. by hiring or promoting less qualified candidates to avoid controversy); the cost in terms of disruption and morale that can result from a litigation tinged or adversarial work environment, etc.

Workplace discrimination against gays and lesbians is also irrational. But it stems from a different source of prejudice than discrimination against Blacks and females. Is there a need for a federal ban on such discrimination?

The estimable Walter Olson, who is gay and an indefatigable supporter of gay marriage, doesn’t think so:

Most larger employers are now on record with policies against discriminating against gay employees, and even smaller employers without formal policies mostly hew to the same path in practice, for many good reasons that include not wanting to lose the talents of employees from any demographic.

Olson also notes that “statistics from the many states and municipalities that have passed similar bills (‘mini-ENDAs’) indicate that they do not serve in practice as a basis for litigation as often as one might expect.” Indeed, a GAO report tracking the experience in such states between 2007 and 2012 found “relatively few employment discrimination complaints based on sexual orientation or gender identity.”

The Washington Post’s editors consider this lack of litigation activity an argument in favor of passing ENDA, since doing so won’t lead to a flood of litigation. From a conservative point of view, however, it’s an argument for not legislating. The flood of litigation that followed the ban on race discrimination in employment, once that ban got some teeth, confirmed the need for such legislation. Lack of litigation suggests lack of need.

The pure conservative position, then, is to oppose ENDA. As Olson concludes:

[A]t some point we do need to stop adding new groups to the parade [of those protected by anti-discrimination laws]—either that, or see freedom of association turn into a presumption of something else. At what point do we say no to future demands that protected-group status be accorded to employees based on political and controversial systems of belief, physical appearance (the “looksism” issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few of the areas that in fact have been the subject of real-world agitation in recent years?

If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

Olson finds this “reason enough to oppose ENDA,” and I think I agree. We should be shrinking the scope of federal anti-discrimination laws (a pipe-dream, to be sure), not expanding it.

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