Enterprise Equality

April 4, 2013


The Employment Non Discrimination Act (ENDA) is currently being considered by the US Congress, again. Proponents say its only fair and opponents say it is grossly unfair. What does it really mean?

We Americans have a crazy quilt of laws across this nation. States pass their own laws about any number of things. What is perfectly legal in some places is deeply illegal in others. We are used to this and it is generally a good thing. Different people in different places should be able to make their own rules... to a point.

We do make exceptions, instances where we don't allow states to make their own rules, where the law of the land is the law of the land: like driving on the right side of the road or requiring drugs to be tested and approved by a Federal agency before they can be legally dispensed by pharmacists under a doctor's prescription. These days there are about as many exceptions to states rights as there are examples of them.

And it is in the area of civil rights that we make the biggest exceptions to states rights. We have federal laws that prohibit various kinds of discrimination on the basis of race, creed, color, etc. and we expect all citizens to abide by and support those laws. I think we generally agree that everyone's civil rights should be the same in New York, Florida, Montana, or Hawaii.

Some people think we have gone a bit overboard in laws relating to basic civil rights, others think we haven't gone far enough. It is an on-going national debate. Originally, in these United States, the only citizens granted civil rights were white men of property. They were the only people allowed to vote or to serve on juries or be elected to office. In many jurisdictions, if you were a woman, or black, or poor, or a child, you had no protection under the law: you could not bring a civil or criminal action against someone else. In the 237 years since we declared our independence from authoritarian monarchy, we have gradually included more and more people who we deem to be entitled to full citizenship and equal rights.

And one important group must be considered here: people who work for a living. We are the majority of the people in this nation, and, in the course of our national development, we have very gradually won certain rights. In the 18th century, employers had all the options and prerogatives, and workers had none. You had to work at whatever your employer said, for as long as the employer said, in whatever conditions the employer supplied, and you could be censured, punished or discharged at the employer's whim. You had no protection from his caprices. In some states, employees could even be brought into court and compelled to obey their employer's orders, and be publicly whipped for even questioning the employer's right to do as he pleased. When employers raped their female employees, if the women became pregnant they could be fined for bastardy in some states.

Since those days, people, principally union people, have engaged in a long hard, painful struggle to get workers some rights: the 40 hour week, paid overtime, sick leave, maternity leave, safe working conditions, workplace amenities, and so forth. In the latter 20th century, we added additional rules for employers regarding discrimination in the workplace. Employers were not allowed to sexually harass their employees, equally qualified candidates could not be denied promotion because of their sex, or race, or religion. Employers were forbidden to ask job seekers invasive questions not related to the job they applied for, because that is a discriminatory hiring practice.

And most working people appreciate and expect this kind of fairness and justice in the workplace. We have created a workplace where most people feel that injustice and discrimination is the exception, not the rule. This is a good thing.

Some employers, of course, are continually trying to reassert their former authority. They resent not having a free hand to run their companies in any way they please. They feel that any governmental regulation is invasive and interferes with their ability to run their companies as they see fit.

And again, this is an on-going debate. Many people think that in some instances there has been too much interference, while other people see the move to deregulate as an invitation for all the old wrongs to be repeated.

So now comes the Federal Employment Non-Discrimination Act (ENDA). ENDA has been introduced in every Congress since 1994 (except 2004). Similar legislation has been introduced without passage since 1974. What it seeks to do is to prohibit discrimination in hiring and employment, on the basis of sexual orientation or gender identity by civilian, non-religious employers, with at least 15 employees. This is already the case in some states.

US Map

In Kentucky, to pick a state, if your employer suspects that you may be gay, you can be terminated without explanation and you have no recourse. Your job performance can be exemplary and you may be heterosexual, but if your employer thinks you are gay, you can legally be discharged. This can't happen to you in Illinois or Oregon. And what ENDA says is that we should make the same rules apply in any state, because not doing so is a discriminatory practice.

For another example, say you work for a large department store in San Diego, CA and a promotion opens up in Charleston, SC. You apply for it. You get it. You move your family across the country and buy a house there. You come to work. On your third day, you are terminated because the store manager thinks you are gay or transgender. In South Carolina you have no legal recourse. This is obviously unjust.

Opponents to ENDA say that it is just local standards: what was perfectly OK in California isn't OK in South Carolina and the folks in South Carolina should be able to ruin your life if they don't like what they think you are. This argument, that unreasonable prejudice is OK so long as it is consistent with local standards should be laughed off the podium every time it is suggested, but it isn't. It isn't because a sizable chunk of the American people agree with the prejudice.

That doesn't make it right or fair, but in this case, it does make it legal.

Many people discriminate against LGBT people because they believe their religion tells them to. Many current religious leaders say that this is true. In earlier times, these same religious leaders, and their followers, used religion to justify prejudice and discrimination against many groups: women, blacks, and Jews, most prominently. Some of them still do so, in private. But as a nation, we have said that those religious convictions are mistaken and they result in unjust persecution and discrimination. So we have passed laws that seek to prevent or reduce these injustices. ENDA is just part of this evolution away from prejudice and towards justice.

To my mind, what we should really have is a single, simple law that says that it should be illegal to discriminate against someone on the basis of any distinction, period. There is no good kind of prejudice, no beneficial kind of discrimination. It is a national disgrace that ENDA did not pass the first time it was proposed. It is a continuing embarrassment, for people of conscience, that ENDA and the Equal Rights Amendment have yet to be made law.

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