Un-ENDA-tended Consequences

The private sector has been way ahead of government for decades now in hiring gays and lesbians and of course allowing them, as many do, to start their own businesses.

So when we make gay people (or sexual orientation) a special protected class and prohibit freedom of association in the economy, will people stop hiring gays, since it will be more costly if you ever fire one?

Will gay businesses and organizations be forced to hire heterosexuals, including people who aren’t gay-friendly, or risk law suits?

Of course, this will create new jobs – for lawyers and bureaucrats of the gay political class.

ENDA and the seduction of symbolic gestures

November 6, 2013 |  By Mark Lee at the Washington Blade

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Employment Non-Discrimination protest in May, 2010. (Washington Blade file photo by Michael Key)

Politicians are rarely catalysts for social change, serving instead as reflectors of shifts in public attitudes. That is the case with the Employment Non-Discrimination Act.

It is also the reason legislative passage would be largely symbolic and of limited practical value. In fact, the impotence of the effort is one reason it will at least – and again – partially advance through Congress. If seeking mostly meaningless grand gestures, this one is for you.

This actuality is far more fundamental than complaints regarding exemptions for the military and companies with fewer than 15 employees, as well as broad waivers for religious institutions and church corporations – including internal self-designation of secular jobs as exempt. It’s bigger than the fact that the legislation sensibly and explicitly prohibits preferential treatment, the institution of employment quotas and does not permit lawsuits claiming that facially neutral employment practices have an adverse, or disparate, impact in application or effect.

The popular perception is that ENDA is a magic solution to job-related discrimination. The reality is that its impact is negated by the vagaries of employment management and overshadowed by the widespread adoption of equality-embracing business practices. Approved this time or not, following two decades of defeats, doesn’t much matter other than as political theater.

Business concern that continued expansion of protected classes in private sector employment administration will result in a wave of hoop-jumping regulations and a bevy of frivolous lawsuits has significantly diminished over time. Not because those worries are unwarranted or indicative of animus toward gay, lesbian, bisexual or transgender workers. Rather, the now accumulated evidence is that it doesn’t much happen.

Andrew Sullivan noted this on the eve of Monday’s Senate cloture tally allowing a vote on the bill in the upper chamber this week. He reported that passage of the federal hate crimes law in 2009 has yielded exactly two successful anti-gay bias prosecutions. Statistics from the numerous municipalities and 21 states plus the District with sexual orientation employment protection laws – including 17 states and the District that include transgender workers – indicate there are few resulting lawsuits. The Government Accounting Office recently concurred.

For whatever reasons, these laws have produced scarce legal action.

Businesses understand the advantage in attracting and retaining talent best suited to build success. Fully 97 percent of Fortune 500 companies have instituted policies prohibiting anti-gay discrimination, with nearly 60 percent including gender identity. This reflects changing societal mores, more than the command of legislators. Fully four-in-five or more Americans believe that workplace discrimination is wrongheaded.

Equal treatment is now the widely implemented enterprise norm. Whether this development has been in some limited instances a result of reluctant acceptance is irrelevant, only underscoring the inability of government to ensure it in the nuanced arena of employment protocols.

Will there be more paperwork to complete and required cover-your-behind steps in hiring or firing? Will there be new human resource litigation-inoculation training to undergo? Will costly unfounded retaliatory claims by falsely aggrieved employees and applicants be instigated against employers honestly exercising the right to make employment decisions absent prejudice or violation of the law? Will pink-slip-chasing attorneys be beneficiaries? Yes, of course.

Are there a diminishing number of outlier employers who discriminate, including those doing so subtly and cleverly and escaping detection? Are there those who oppose LGBT employment protections because they dislike or even hate us? Who think our “behavior” immoral while masking bigotry utilizing a religious shield? Yep, there are.

However, statements by advocates that “every night, millions of LGBT workers go to sleep not knowing if they’ll have a job the next day” are silly and overblown. Hyperbolic claims diminish the situation some face and suggest a false remedy.

Changing attitudes and behavior through coercion, whether concerning big things or small matters and no matter how soothing a salve to the pain of history, is the easy and empty act. We need to remember that.

Mark Lee is a long-time entrepreneur and community business advocate. Follow on Twitter:@MarkLeeDC. Reach him at OurBusinessMatters@gmail.com.

Gay DC tires of Obama duplicity

Obama, like most Democrats, has been tapping the GayTM and taking two thirds or more of the gay vote, while not delivering much more than Bush.  He didn’t campaign to stop the North Carolina anti gay marriage constitutional amendment last year, nor did he campaign against California’s Prop 8 when running for office in 2008.  The repeal of DADT was forced on him (Democrats were trying to keep the ban on gays in the military alive as long as possible as a wedge and fundraising issue), until the courts, in a law suit largely sustained by Log Cabin Republicans, was about to overturn the ban.

Now Obama is not issuing an executive order to ban discrimination among federal contractors.  Though I’m sensitive to the beliefs and rights to freedom of association of people who go into business and then find the government has so monopolized their markets it is the main customer, I still favor this executive order (for government contractors only).

Of course the gay political establishment wants the right to enforce quotas and other regulations on all private associations where employment is offered.  My suspicion, given that most Fortune 500 companies have banned employment discrimination, is that the government sector may be worse on this issue than the private sector, and that the private sector is also experiencing more change.  Making all private employers equally gay friendly of course eradicates market signals.  High tech firms and others that are particularly inclusive, and that innovate ways of being inclusive and doing outreach that their competitors and government regulators have never dreamed of, may be reaping rewards in acquiring a superior talent pool.  Government regulation will prevent that, ending salutary evolution of better business practices.

Here’s Sean Bugg in MetroWeekly, both the stereotypes of off the shelf gay mainstream so called “progressivism”:

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We all have our rhetorical tics and tricks. For example, mine include the excessive use of clauses such as ”however,” ”actually” and ”for example.” I also tend to spend the first couple paragraphs of any column making jokes and references that are only tangentially related to the subject I’m writing about.

However, that’s no guarantee the jokes will be funny.

President Obama speaks at LGBT Pride reception

(Photo by Todd Franson/Metro Weekly)

I was reminded of this last week when President Obama spoke at the White House’s annualLGBT Pride reception. The president’s verbal tics are as well known as old Saturday Night Live catchphrases — every time he says ”Let me be clear,” someone might as well call out, ”More cowbell!”

But Obama’s particular rhetorical trick with the LGBT community is his repeated urging for us not to be patient, followed by declaring that he won’t do the thing we’ve been impatiently asking him to do — in this case, to sign an executive order requiring federal contractors to have nondiscrimination policies that include LGBT employees. This is not a big ask for our community. The president clearly has the authority. He has explicitly said that executive action is an important and necessary part of advancing LGBT and other civil rights issues. He promised to do so when he was running for his first term.

Yet here were are in 2013 and he simply refuses to do it.

The official White House line is that he wants to pursue a legislative strategy, which is why Obama mentioned the legislative repeal of ”Don’t Ask, Don’t Tell,” back at the end of 2010. Of course, that molasses-paced legislative process resulted in a lame-duck nail-biter that barely squeaked through before Minority Leader Mitch McConnell (R-Ky.) got enough votes to recklessly abuse the filibuster.

The idea that we should be putting our sole hope in a legislative strategy for a transgender-inclusive ENDA – in a Senate that threatened to scuttle immigration reform that even Republicans admit is crucial to their long-term survival as a political party over the inclusion of gay couples – is simply ludicrous. And that’s even before we get to the Republican mad dog caucus in the House.

There is a two-pronged approach to take here: an executive order that reinforces and grows protections for thousands of LGBT employees across the nation, while helping to build increased support for ENDA by demonstrating the positive effect (or lack of negative effect) in the many, many congressional districts that represent federal contractors.

Yet the president insists on pursuing a one-pronged approach, even as that one-prong is the least likely to succeed given the Republican recalcitrance and control on the Hill. It really makes no sense. If there is a logical reason for Obama to not sign an executive order that he previously promised to sign and that fits within his own stated approach to civil rights, someone at the White House needs to explain it. Brushing off inquiries by referring to the ”hypothetical executive order,” as spokesmen have done, doesn’t cut it. Jay Carney rotely repeating that the president believes in pursuing a legislative strategy on ENDA has become insulting.

And President Obama standing before a roomful of LGBT people, telling them not to be patient and then citing DADT repeal as a model for ENDA is, frankly, a finger in the eye.

For a president who has undeniably done so much for LGBT equality, these rhetorical tics and tricks are maddening, and the political strategy on ENDA indecipherable. He needs to explain why he’s chosen only one option when he can pursue two. Or he needs to bite the bullet and sign the executive order.

Actually, I’m getting awfully damn impatient.

Sean Bugg is the co-publisher of Metro Weekly. He can be reached at sbugg@MetroWeekly.com. Follow him on Twitter @seanbugg.