The U.S. Senate recently passed the Employee Non-Discrimination Act with 64 votes, including 10 Republicans. The Act would prohibit workplace discrimination based on sexual orientation and gender identity. The fight now goes to the Republican controlled House of Representatives, where it faces an uphill battle.
With or without this Act, why anyone would want to discriminate against the LGBT community is beyond me. As I’ve said before on this site, it’s hard enough to find good, dependable employees. Firing or not hiring someone based on factors that have no effect on work performance is just plain bad business.
But I’m not naïve. I know that LGBT discrimination exists, and is pervasive in some industries. If they are to get an equal opportunity to succeed in the workplace, they need the same protections afforded to women, minorities and the disabled. ENDA is a good idea which will have a limited impact on employers who already have fair employment practices and use solid business judgment when making employment decisions.
It’s no surprise that conservative groups like the Heritage Institute object to the Act. What is surprising is that I’ve read arguments against the Act by otherwise reasonable HR people.
The arguments are generally two-fold. The first is that ENDA denies employers with religious objections to homosexuality the right to hire based on those religious beliefs, and in doing so denies them the right to religious expression. The law does have an exemption for religious institutions, but that does not apply to private, for-profit businesses.
Expression of religion does not include beliefs that limit the freedom of others. What if I said that my religious beliefs include one that says women belong at home? Could I then discriminate because of gender? Or what if my religion believed that the earth was given to us by God for our use, and He will always protect it, regardless of our actions? Could I then dump toxins into rivers that supply our drinking water?
One role of government is to protect its citizens from businesses through regulation. Pure libertarians argue that this is not their role, and that the free market will take care of these issues, but history has shown that this is not the case. Government regulations ensure that our air is safe to breath, our food is safe to eat. It makes sure that employers cannot withhold employee wages and need to have a safe work environment. To argue that government cannot infringe on an employer’s right to do whatever the employer wants would set us back 100 years.
There is another, more reasonable argument against ENDA, but one that still doesn’t hold up. This argument states that ENDA would actually hurt LGBTs in the workplace. Employers would not hire LGBT workers because they would be afraid that if they had to fire or discipline the worker, the worker could sue them.
The first problem with this should be obvious – How does an employer know that a job candidate is LGBT? Just because a man’s mannerisms are somewhat effeminate doesn’t mean he’s gay. Just because a woman keeps her hair short and doesn’t wear make-up doesn’t make her a lesbian. I’ve known gay men who like football and drink beer. I’ve known lesbians who wear short skirts and heels. The only way of knowing is if they tell you or you ask them – and even then, the person could lie.
The second problem with this argument is the fallacy is that putting a group of people into a “protected class” means they are protected from being fired, and that firing them will get you sued. Some people think that being protected by the law means getting special treatment. It does not. It means receiving equal treatment.
I’ve had to fire hundreds of people during my career – whites, minorities, men, women, gays – you name it. All these decisions had one factor in common – they were all made for sound business reasons and not because of discrimination. Of all these terminations, there were only two occasions in which someone sued for discrimination (the cases were thrown out for having no merit).
Unless you are a healthy, young white man, you probably fall into one protected class or another. As an employer, one risk you take in letting someone go is that the person could find a reason to file a law suit and a lawyer to take the case. Certainly, the risk of a law suit is a factor when making the decision to terminate. Even unfounded law suits cost time and money, but I have found they are worth it to get rid of an underperforming employee, regardless of protected class. Employers who do not hire or fire someone because of the fear of a lawsuit don’t have the stomach to be in business, anyway.
History proves that there is no evidence that employers wouldn’t hire LGBT because of the fear of lawsuits, or that there would suddenly be a rash of lawsuits. If that were the case, we would have seen this happening in states that already have laws preventing discrimination based on sexual orientation. But according to equalitymatters.org, there has been no increase in lawsuits in these states.
It should be noted that most businesses have no problem with ENDA or other laws that prevent discrimination. The same equalitymatters.org article points to surveys that show that 7 in 10 businesses are in favor of it. As Tim Cook said in the Wall Street Journal, having a workplace free of discrimination means having a workplace where employees feel accepted and are positive towards their employers.
And that can only be good for business.