ENDA's Game

The Employment Non-Discrimination Act passed out of a critical committee vote today, and the law will soon be voted on by the full House of Representatives. The critical language, supplementing the Civil Rights Act of 1964, is:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation.

I'm ashamed to note that my own Congressional representative voted against passage of the law. "Buck" McKeon, my Congressman, said in a press release, "When you strive to protect some people, you take away protections of other people ... some of us on this side are representing some of those people that feel like as good as your intentions are, you're taking away their rights in their religious beliefs and dealings on a day-to-day basis."

What are you talking about, Buck? The right of someone to fire an employee you think is gay, that's what. Conflating your "no" vote with the "principle" of "religious freedom" is dressing up prejudice against gay people in the vestments of religion, pure and simple.* It would be rather unusual for someone to be fired for, say, cheating on their spouses, skipping church on Sunday, or for blasphemy, and most people would think that firing someone from a job for doing such a thing would be an overreaching into the private life of an employee on the part of the employer.

Also interesting to note is the fact that some Democrats are opposed to the bill, because it does not include within its scope of protected classes people who have unusual "sexual identities," which means transgendered people (pre-, post-, or non-surgical). While discrimination against such people is bad, EDNA is still a step forward. What's more, as Professor Dale Carpenter argues, it would be very unusual indeed for a case of non-conformance to a "correct" gender identity would be legally distinguishable to a jury from a case of at lease perceived sexual orientation.

The real battle for passage will be in the somewhat more closely-divided Senate, probably in late November. The law probably does not have enough votes behind it to survive a Presidential veto, if the President elects to veto it. It's not clear to me whether such a veto would be in the works -- the President is not stupid, and he knows that a veto of this law would be yet another rallying cry to the Left that would affect the 2008 election. He's already given a lot of ammunition to the left by vetoing SCHIP, the unholy and expensive proposed marriage of AFDC and Medicare. Or, on the other hand, he could decide that he simply doesn't give a damn what anyone in either party thinks of him or his vetoes, and he'll just do whatever he pleases and veto the law, or not.

Time will tell. But I can't think of any reason in the world that pretty much any employer would have a legitimate interest in discriminating against gay people, and so I hope that ENDA becomes the law of the land.

* Religion is often used to provide cover for what otherwise would be obviously morally unacceptable conduct, but that's not what this post is about.