Long Road of Discrimination

September 5, 2013


Again, the Employment Non-Discrimination Act (ENDA) crawls through the national legislature. We hear the same old supporters who argue in favor of less discrimination, and the same old opponents who argue against additional federal legislation.

The tortured history of ENDA seems to go on forever. ENDA has been introduced in every Congress since 1994 except the 109th. Similar legislation has been introduced without passage since 1974. What gives? Are there really so many people in favor of employment discrimination? Short answer, yes.

Disregarding the wingnuts who oppose nondiscrimination on the grounds of religion or outright prejudice, the single biggest group of opponents of this legislation are employers. Assume that you are an employer. You want to be able to select the people you hire on the basis of one thing, your own opinion. You want to be able to pay them what you want to pay them. You want them to work whenever you want, as hard as you want them to work. And you want to be able to get rid of them instantly for whatever reason strikes your fancy.

I can understand this attitude. However, I cannot agree with it. The only place where employers approach this total freedom to do as they please with their employees is the third world, and even there, this is usually a privilege bought with bribes and intimidation. In developed countries, we have found that not regulating the workplace results in bad things: sweatshops, dangerous work environments, starving children and, eventually, violent unrest.

Disregarding the wingnuts who support nondiscrimination on the grounds of religion or outright prejudice, the single biggest group of supporters of this legislation are employees. Assume you are an employee. You want to be treated fairly and honestly. You want your work evaluation to be arrived at rationally, on the basis of your work performance. You want to be adequately compensated for your labor. And you want to be secure in your employment. You want to be able to take a vacation. And you want to get some holidays off. If you put in a whole bunch of overtime on some project, you want to be compensated for it. If you get sick, you don't want to be penalized or fired. If you do get fired, you want it to be for a good, and legal, reason. You also want to be able to quit without giving six months notice, and to then be able to find employment in the place you want to live. You don't want your former employer to be able to blackball/blacklist you all over town.

I happen to share this attitude. I have been an employee for the past 40 years. Whereas I can understand the employer's perspective, I agree with and actively support the employee's view. In this country, for the past 100 years or so, we have created and supported regulations on employment that are supposed to lead to safer, fairer and more equitable workplaces for all. About eighty percent of our citizens support the principle of employment regulations. In my opinion, we have enacted nowhere near enough regulation to make our workplaces as safe, secure and sustaining for all workers, as they should be. When I compare my working conditions to those of comparably employed people in Europe, who work for the same company, doing the same work, I am seriously disadvantaged. That seems to me unfair.

So, what about ENDA? Well, for myself, ENDA does very little. I happen to live in a state whose employment regulations are unchanged by ENDA. However, I want everyone in the nation to have the same protections I do. Fairness and equality should not be something some people have and others do not, based on accidents of geography. ENDA extends employment protections currently enjoyed by some groups of people, to some other groups of people, and makes this one set of rules the national standard for every state.

As far as the legislation goes, I personally think ENDA is the wrong kind of legislation. I do not believe we should identify this group or that group and write legislation about these people or those people. I happen to think that there are very few reasons to divide people into groups that may, or may not, be discriminated against. We should have one set of rules that prohibit discrimination against people. If an employer wanted to discriminate, they could argue their case in court and either be allowed to discriminate in their very special and unique case, or they would be required to obey the simple law of the land.

What kinds of discrimination are OK? People come in all levels of education and intelligence. Some jobs require higher education and professional qualifications. I want my hospital to hire qualified physicians, and not rely on talented amateurs. I would like my auto mechanic to have the experience and training to fix my car correctly the first time. I don't want the law to require the auto shop to hire the first applicant, regardless of skill or ability, just because they were first.

If I am hiring for a physically demanding job that requires strength and endurance, I am much more likely to hire a person of well-developed physique than someone like myself. I know what I can do, and I would never apply for such a position. If I were hiring someone who would be responsible for working on the telephone, asking complex questions, and collecting a wide-range of information quickly and accurately, and if 99% of the callers spoke English as their first language, I would discriminate against people with poor English skills or heavy, difficult to understand accents. I'd be crazy to hire an English-only speaker if half my customers only spoke Spanish.

These examples fall into areas I might call "rational" discrimination. You may not agree with me. I may be wrong. But I am definitely against discriminating on the basis of someone "being" something: young, Jewish, black, homosexual, old, Catholic, affluent, Japanese, poor, or male. It does not matter which one. Allowing discrimination against any group makes discrimination against any other group OK. I also think, no one should ever live in fear of being fired for being discovered to be any of these things. That is always just plain wrong.

There are lots of things I disapprove of entirely that I still don't think a person should be fired for. Example: Someone who works in the physical plant of a downtown office building, maintaining the HVAC equipment, and who does this well, should not be fired because the employer discovers that he was convicted of child molestation 18 years ago. I don't have to approve of the crime, to understand that this person still needs a job. I do not think I'd be in favor of the same person working in my local elementary school, but I don't think there is anything wrong with allowing this human being to do a job they do well, while harming no one.

The arguments some people make about how this legislation will destroy the economy, and end civil society as we know it, are obviously just plain wrong. Europe has had these same kinds of nondiscrimination provisions for decades, and many states have them now. Extending these protections to all people will not make the sky fall. It is just fair and reasonable. Employment discrimination on the basis of sexual orientation or gender identity is not.

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