Dissents Of The Day

Nov 5 2013 @ 2:03pm

Readers push back against my very qualified support for the Employment Non-Discrimination Act:

Huge fan, and now subscriber. But you’re looking at the ENDA question all wrong. It isn’t about how many successful suits are filed under ENDA or any other hate crime law. The point of a law is not to prove how many “notches on a bedpost” can be achieved; it’s to stop the behavior before it ever occurs. So the next time management wants to do something to a gay employee, they stop, think twice, and the issue … never becomes an issue. Perhaps the employee will never even know it happened. We may never be able to put a number on this, so critics may always be able to say “look, this law is hardly ever used, so there was never a problem!” But for gay employees across the country to be able to sleep a little easier at night, it’s worth it.

The problem is: how can the need for any law therefore be analyzed? If there are no law suits, it works; if there are loads of law suits, it works. Heads you win; tails you win. And freedom is nitpicked and nitpicked. Here’s a better response:

I volunteer with GLAD Answers, formerly the GLAD Legal Infoline, which provides legal information, assistance, and referrals for LGBTQ and HIV+ people in New England, and also flags cases that GLAD itself might be interested in taking on as impact litigation. Now, New England is a pretty liberal region, so a lot of people assume there’s no employment discrimination problem here, but we actually get a decent number of calls and emails from people in this situation – last time I saw the numbers, well over a hundred in the previous year. If you’re interested I can try get some recent numbers. That’s just the people who contacted GLAD rather than start the legal process themselves or resign themselves and keep quiet/move on. We get a lot more employment discrimination calls than we do housing or public accommodations discrimination.

If people want to pursue these cases, they generally involve going through a state anti-discrimination agency. In my state, Massachusetts, the relevant agency is MCAD. According to MCAD’s 2012 (pdf) and 2011 (pdf) annual reports, they had 115 sexual orientation complaints filed with them in 2012 and 130 in 2011. As 83% (2012) and 84% (2011) of all their complaints were about employment discrimination, it’s reasonable to assume that the vast majority of the sexual-orientation-based complaints were about employment discrimination. This is in liberal Massachusetts!

These numbers also don’t include discrimination against trans people, as protections for them weren’t passed in Massachusetts until mid-2012. The plurality of those cases, by the way, end up being settled through MCAD mediation. This doesn’t mean that the laws aren’t having an effect – if there was no law, MCAD wouldn’t be involved to mediate.

I can’t imagine having to tell callers that what happened to them was perfectly legal, that they have no legal recourse. We’re fortunate here in New England that all of our states prohibit employment discrimination for sexual orientation, and all but New Hampshire prohibit it for gender identity. Even though I am skeptical about ENDA’s ability to pass the House right now, I feel very strongly that the fight for it needs to keep going and stay strong (and come on, Gay, Inc over the last few years has been consumed with marriage equality more than anything else).

It’s also worth noting that employment protections for trans and gender non-conforming people are really important, as such a high percentage experience workplace discrimination and harassment – check out the National Transgender Discrimination Survey here.

Another:

A point you could have picked up on, but didn’t: It may be true that 88% of Fortune 500 companies have non-discrimination policies, but they are, increasingly, a smaller proportion of the workforce. As you yourself have found through the new independent Dish, a lot of Americans are going it alone or working for businesses that are much, much smaller. As I understand the numbers, Fortune 500 status is based on revenues, not employee numbers, so you have anomalies like Spectrum Group International, an $8 billion company ranked #331, but with only 190 employees. There are far more people working for small companies – those with less than $4.8 billion in revenues, the cutoff point this year for Fortune 500 status – who are much less likely to have employer-sponsored protection. ENDA would help them. Some may still choose to move on rather than fight to work in a hostile environment, but at least then it becomes a choice.

Another:

I have another reason why it is now very important to enact ENDA. It would help with the implementation of same-sex marriage. Given attitudes and personal considerations, many gay people remain closeted or semi-closeted at work. However, entering into a lawful same-sex marriage would automatically out you to an employer. This would occur because tax withholding and employer provided health insurance (and some other benefits) are partially dependent on marital status.

This is not a big deal if your employer is supportive or if you have legal protections. With regard to the legal protections and prior to this year, all of the U.S. jurisdictions with same-sex marriage had previously enacted a sexual orientation inclusive employment nondiscrimination law. That changed with the Windsor case. Despite not forbidding sexual orientation-based employment discrimination under federal statute, the national government will now recognize a same-sex marriage. This lack of federal protection is not a huge problem if you and your spouse live and work in any of the 21 states that address this issue through state law. But if you live in or work in the other 29 states, you could be forced to out yourself to a hostile employer, without any legal protection, when setting up your withholding or signing up for insurance.

While this issue might only concern a comparatively small number of married gay couples in the next year or so, it will certainly grow. Several of the states (e.g. Michigan, Pennsylvania and Virginia) that lack gay inclusive nondiscrimination protections are facing lawsuits to overturn their same-sex marriage bans. A blanket level of national protection (ENDA) is going to be a major help in successfully implementing same-sex marriage. Otherwise, I fear that we are going to see gay couples getting married in some states only to be fired by their anti-gay employers.

That may well be the case. My own view is that the marriage debate – which got to the core of gay equality and dignity – has shifted attitudes so as to make this bill seem relatively anodyne. But my reader is right that there’s a virtuous cycle in the dynamic between both reforms.

Yesterday’s Dish on the positive case for ENDA here.