December 3, 2012

Should ENDA Get Another Chance?

Current antidiscrimination law expands only with the creation of protected classes. A protected class is a group of people that has been legislatively protected by Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or other legislation defining a group of people who have been deemed in need of protection from adverse employment actions based on certain characteristics. This is why the Human Rights Campaign and other gay rights groups are hoping that, with President Obama's reelection, the Employment Non-Discrimination Act (ENDA), has gained new hope.

Some of the rationale behind the selection of protected classes stems from the long history each group has of political powerlessness and discrimination. Other rationales stem from the "immutability of characteristics" - in other words, because certain groups of people are marked by characteristics that are impervious to change.

The goal of antidiscrimination law is to "neutralize" prejudice to help evaluate and advance disadvantaged groups based on their merit alone. However, the rush to create protected classes has floundered when it comes to the goal of establishing equal rights for Lesbian, Gay, Bisexual, or Transgender (LGBT) people. The Employment Non-Discrimination Act (ENDA) was first proposed back in 1994, and a version of it has been proposed nearly every year since. This proposed legislation is still being advanced in both the House and Senate.

What would ENDA mean for the LGBT community? The idea behind ENDA is that such an act would prohibit employers from making employment decisions based on a person's sexual orientation or gender identity. Currently, it is perfectly legal in most jurisdictions for an employer to say, "You're gay? You're fired." ENDA has been advanced as a way to end that particular practice.

From one vantage point, Congress' unwillingness to pass ENDA could be attributed to a majority belief that gender is a non-mutable characteristic and a person's sexual orientation is a choice. As recently as 2008, Congress was willing to create a new protected class for the non-mutable characteristic of genetic make-up (Genetic Information Non-discrimination Act, or GINA). Until enough members of Congress believe that LGBT status is not a choice, ENDA's success seems unlikely without an Executive Order.

In the middle, many also argue that there are fundamental flaws inherent in creating additional protected classes, and ENDA should not be passed, no matter the merit of protecting LGBT rights. One such fundamental flaw is reverse discrimination: for every protected class that is chiseled into our laws, an equal and opposite class of "unprotected" people now have standing to assert a reverse discrimination claim. Although many argue that Congress had no intention of addressing problems of reverse discrimination when passing current employment-discrimination laws, still others argue that all claims of discrimination, whether by a protected class or not, need to be treated equally under the Equal Protection Clause of the Fourteenth Amendment.

Finally, even if President Obama does decide to write ENDA into law, many LGBT advocates have criticized ENDA's current form as too weak. This criticism arises due to a series of legislative compromises made in an effort to get some protection passed for LGBT people. These compromises exempt many businesses that would ordinarily be subject to the requirements of Title VII, and additionally eliminated many protections for transgender people.