Brown: Legislators act against Employment Non-Discrimination

Phil Brown

Advocates for the LGBT community have had quite a bit of good news recently. The Supreme Court has allowed for federal acknowledgment of same-sex marriages, states such as New Jersey and Illinois have legalized same-sex marriages, and just this past week the Employment Non-Discrimination Act has made advances. The act as it is commonly referred to, would place a federal ban on discrimination against workers because of their sexual orientation or identified gender.

Along with the 55 Democrats and independents in the Senate, 10 Republican senators joined in a successful vote Thursday to move the act along to the House of Representatives.

Unfortunately for those wishing to see legally protected workplace equality, Speaker of the House John Boehner has positioned himself opposed to the bill as it is written in the Senate. A Boehner spokesman was quoted as saying: “The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs.”

In all fairness, the concerns Boehner has should not be dismissed without consideration.

The idea behind the belief that laws like the act increase frivolous litigation is that there will be instances where individuals of the newly protected class are fired or not hired for legitimate reasons. In some of those instances, the individual in question will sue their former or potential employer under the new law, despite the fact that they were not actually the victim of unfair discrimination.

If such cases were to go to court, the employer will face unnecessary legal fees and have to spend time making sure they are not found guilty of a crime they never committed, to say nothing of the unfortunate cases where innocent individuals may actually be found guilty.

Those costs, and the costs incurred by employers who actually do discriminate based on sexual orientation or gender identity may very well force some businesses, especially small businesses, to reduce their workforce or even close altogether.

What Boehner fails to realize is that despite these potential corruptions, there is still a need to protect workers from discrimination. We do not suspend similar legal protection (such as that from employment discrimination based on race or biological gender) simply because there may be a few bad apples in the bunch.

Like biological gender and race, there is a proven history of discrimination against those belonging to certain sexual orientations and those who may identify as a gender other than the one in which their employer feels they should identify. A widely reported study by Harvard University’s Andras Tilcsik found that a significantly lower proportion of resumes including membership in a gay organization received callbacks compared to similar resumes without such memberships.

An argument against employee protection based upon their sexual orientation or gender identity is an argument against all employment protections, unless there can be found some distinguishing factor, other than the belated social acceptance of the LGBT community.

Some claim to have found such a distinction, referencing religious beliefs that oppose homosexuality and other forms of so-called “unnatural” personal identification. Many legislators and political activists have warned that the act would trample on the religious freedoms of employers and their businesses.

While the bill excludes religious organizations, some employers who run for-profit, nonreligious businesses may still have personal reservations against certain employees. However, despite what is often said of the famous “Citizens’ United” Supreme Court case, businesses and corporations — which are the entities being regulated by the act — are not people.

While they have a right to freedom of speech, this is due to their legitimate political interests. There are different ways to operate a country, and corporations (along with their profits) will be affected by our government. They do not have religious interests, though, as they are not actually people, and could not possibly have beliefs on the existence of a spiritual realm, let alone the rules by which people should behave to gain eternal salvation.

With two-thirds of registered voters (including over half of Republicans) in favor of the act and around 80 percent of the respondents of a recent Americans for Workplace Opportunity poll thinking such a law already exists, it is more than obvious that legislation like the Employment Non-Discrimination Act needs to be passed.

Apart from the widespread national and state-by-state support, there is a better reason to support the act. In the words of our very own Sen. Tom Harkin, D-Iowa, who led the bill through committee: “Here, we are taking one more step to make the American family more inclusive.”

Harkin could not be more right. Tolerances like those espoused by the Employment Non-Discrimination Act are what truly make up American family values.