[Update: As of 10/1 there are apparently reliable reports that Pelosi and Frank have reversed course and agreed to delay the "mark up" of ENDA until later this month in response to activists' demands, and presumably to mark up a bill with transgender inclusion. It's also likely that, good vote counters that they are, they expect that a T-inclusive ENDA will likely fail, in which case it will be up to the activists to decide whether to try again with a T-less variation (and I'm guessing the activists are so wedded to T-inclusion that the answer will be no). I'd also bet that the overwhelming majority of lesbigays would be fine with a T-less ENDA, but it's not like anyone cares.]
Original post: Looks like congressional Democrats, following the lead of openly gay Massachusetts Rep. Barney Frank, are moving forward with two versions of the Employee Non-Discrimination Act (ENDA): One for LGBs (lesbians, gays and bisexuals ) and one for Ts (transgenders). The Democratic leadership, however, is "marking up" the LGB version and pushing it forward, leaving the T bill in legislative limbo.
I'm ENDA neutral. Gay libertarians are firmly against it, opposing all laws telling employers who they can or can't hire, fire or promote. I see ENDA as less intrusive than other anti-discrimination measures-i.e., no assumed "disproportionate impact" requirement that hiring reflect regional racial/ethnic breakdowns (leading to race-based preferences), or that drug addicts be kept on the payroll because they have a disability. ENDA would probably criminalize any official statements that gays won't be hired (with perhaps an exemption for religious groups), but it's rather easy just to not state why someone is or isn't offered a job or promotion. ENDA advocates wildly overstate what it will accomplish.
Planet Out reports that:
Leaders of 12 LGBT rights groups issued a statement Thursday opposing any effort to remove transgender protections from the latest iteration of the 33-year drive to add gay men and lesbians to federal anti-discrimination law....
Signatories included leaders of PFLAG, the National Gay and Lesbian Task Force, the National Stonewall Democrats, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the AFL-CIO's Pride at Work, among other groups...
The likelihood that activists such as the NGLTF and maybe even the HRC (see below) might oppose a "non-inclusive" ENDA would certainly be a political spectacle (read: meltdown). Already, Pride at Work announced it will picket when Pelosi speaks at the HRC's upcoming National Dinner. But since it's likely that Bush would veto ENDA anyway (with Ts in or out), it may all be sound and fury-and fundraising-anyway.
The HRC is asking for feedback on what it should do about ENDA, but there's no doubt that it's committed all-out to passing the federal hate crimes bill (the group, you see, is against hate crimes except if committed by black thugs against a straight white teenager, and then it favors letting the bashers go free).
On hate crimes laws, I'm with the libertarians in opposing measures that criminalize intent [added: animus is a better word here; punish the crime and the degree of planning that went into it, not accompanying "thought crimes"] and so don't favor the bill that congressional Democrats have attached to an Iraqi funding act (which Bush, who is against bringing the federal government further into local hate crimes prosecutions, may or may not sign). But the religious right's scare-mongering over this bill is also way overblown-I don't expect anti-gay sermons to be criminalized anytime soon, at least I hope not, for the sake of all our freedoms.
Relatedly, some gay activists are targeting one of the good-guy Republicans, New Hampshire 's Sen. John Sununu, a libertarian-leaning small-government conservative who stood up to his party and opposed the federal marriage amendment. That's a sorry development.
Because Sununu opposes ENDA and the hate crimes bill, he's been labeled "anti-gay." But his opposition to these measures (a view shared with gay libertarians) derives from his belief that there are constitutional limits on the role of the federal government, not from anti-gay animus. And despite what liberal (albeit supposedly nonpartisan) activists may think, having at least some GOP senators who vote no on anti-gay marriage amendments is a positive thing.
Larry Craig Watch. Via Opus.
30 Comments for “ENDA and Us”
posted by Bobby on
Great! We have to include every group, even groups already protected by gender laws. Fine, let’s include left handed people, fat people, anorexics, smokers, republicans, conservatives, bulimics, and anyone else who could be fired from their jobs. In fact, let’s add illegal aliens to the list, or forgive me, I meant “nice sexy mexicans with big dicks who just happened to violate the law to come to America.” Or we can do what they do in most Latin American countries, which is to force employers to pay fired employees 6 months of their salary (varies by nation). That way nobody is ever fired and people are begged to quit. Yeah, progressive rule! Go Marx, Go!
In the meantime, I’ll continue to enjoy working this weekend because in my real world, you can work 5 days and be expected to come on the weekend if there’s a new business pitch. But if you want to pass a law banning that, go ahead!
posted by Brian Miller on
Well golly gee.
When Outright Libertarians explained why we were opposed to ENDA, useful idiots for the Democrats came in and claimed that since we oppose such special rights legislation for LGBTQ people, we “hated gay people.”
Using their “logic,” would it be fair to say that the Democratic Party thus “hates transgender people” since they voted to exclude them from this ridiculous law?
Something tells me an honest answer will be a long time coming! 😉
posted by Charles Wilson on
You don’t want to criminalize intent, huh? Well then we’d better get rid of the entire criminal code, including the distinction between involuntary manslaughter and first-degree murder, because the perpetrator’s state of mind is the linchpin of any criminal case. If you don’t believe me, go to your legal dictionary and look up “mens rea.”
For gay “libertarians” to argue that there’s no such thing as a hate crime isn’t just ignorant, it’s self-hatred run rampant. Tap! Tap! Tap!
posted by Randy on
If being against ENDA and Hates Crimes bill, that what does a bad guy look like?
posted by Boo on
You don’t want to criminalize intent, huh? Well then we’d better get rid of the entire criminal code, including the distinction between involuntary manslaughter and first-degree murder, because the perpetrator’s state of mind is the linchpin of any criminal case. If you don’t believe me, go to your legal dictionary and look up “mens rea.”
Intent is the degree to which you meant to commit a crime. Motive is the reason why you commit a crime. They’re not the same thing.
posted by Avee on
Randy, I’m against ENDA and the hate crimes bill because I don’t think the federal government has any constitutional authority in these areas. I guess you think I’m an “inauthentic gay person” and that only gays and straights who favor endless expansion of federal power are “good guys.”
posted by Bobby on
Involuntary manslaughter and first-degree murder are two different things. A gay basher can still be charged under either one of them, depending on wether it was accidental or deliberate.
The only reason for hate crime laws is the theory that a hate crime makes the entire community feel victimized. However, I think that those laws provide a slippery slope to criminalizing so-called “hate speech.” In Canada and Europe christian ministers have already been sued for speaking against homosexuality and Islam.
And frankly, I wouldn’t want to live in a country where I can’t say anything because it might seem hateful to someone else. It’s bad enough that political correctness is embraced by the private sector, we don’t need the government and their evil lawyers having more legal ammunition against freedom. At this rate, we might as well get rid of the statue of Liberty since pretty soon it’s not gonna mean anything anymore.
posted by The Gay Species on
GLBT do not have their civil rights? No. And IGF defends this in order to safeguard the employers’ prerogative over the employee’s? How “non-egalitarian” of you. If race, sex, religion, etc., are not to be considered in public accommodations, housing, or employment, why should sexual orientation? What “relevance” does sexual orientation have to public accommodation, housing, or employment? None! Therefore, the 1964 Civil Rights Act should be amended to include “sexual orientation.” One move, many solutions. Or do you oppose GLBT’s civil liberties, too?
posted by ETJB on
(1) For some one who opposes the oversimplifaction of ENDA, it is interesting to see (a few lines down) the oversimplefiction of a series of racially motivated crimes in a community with longstanding and bitter racial divides.
(2) Not all crimes are hate crimes. Yes, if the black students beat up the white student (or vice versa) because of their race it might be a hate crime depending on applicable state and federal law.
(3) If a canidate opposes legislation that an interest group favors, they are probably not going to that the group’s endorsement. The fact that he is from NH probably has more to do with his views then his party.
posted by Amicus on
libertarians are firmly against it, opposing all laws telling employers who they can or can’t hire, fire or promote
a position rendered ridiculous on anything other than the ‘beautiful world’ dreamscape on which it was probably written.
In the real world, employers – many of them – aren’t, themselves, … libertarians … get it?
I’m with the libertarians in opposing measures that criminalize intent [added: animus is a better word here; punish the crime and the degree of planning that went into it, not accompanying “thought crimes”]
huh?
by this reasoning, we would have to do away with laws that deal with setting fire to Churches, special provisions for kidnapping, sexual exploitation of minors, assassination, … the list is long.
We’d have to rule out the possibility of ‘mass murders’ as … nothing more than I’m going to murder this one person, and this other, and this other, and this other, …
Indeed, the very idea of punishment includes a full assessment of intent.
posted by ETJB on
Libertarians tend to believe that America was a magical place prior to such ‘evil’ things as the New Deal.
A libertarian student club on my campus sponsored a video about the income tax that stated that America was free before it was enacted…free?
posted by Craig2 on
Insofar as anti-discrimination laws go, Britain, Canada, New Zealand and Australia all have them. Sorry, but why would you want to be that different from the rest of the western world? Why shouldn’t prospective employers place merit above their silly personal prejudices when it comes to employment?
Craig2
Wellington, NZ
posted by Roy on
I’m with the libertarians in opposing measures that criminalize intent
Er… you already can’t criminalize intent on its own. There has to be a corresponding act as well. However, what’s in the mind of the perpetrator is quite relevant in determining the severity of a crime. This is a basic concept in criminal law. If we take away the element of mens rea, then we’re left with strict liability for all crimes (which, I suppose, some libertarians wouldn’t disagree with). But I doubt centuries of evolution of English/American criminal law will be radically turned on its head because of a few libertarians.
posted by Avee on
Why shouldn’t prospective employers place merit above their silly personal prejudices when it comes to employment?
Because the United States differs from much of the rest of the world by enshrining liberty as its highest value (yes, liberty for employers, too, even bigoted jerks) above
state-enforced “equality.”
And why do commenters keep attacking Miller’s original statement on hate crimes and “intent” when he soon after revised and clarified his post, admitting that “intent” was the wrong word? Because it’s easier to attack him on his error than on his clarified argument.
posted by Mark on
For those of you who consider libertarians “anti-gay,” please be aware that we oppose hate crime and anti-discrimination laws for everyone. I think it should be totally legal for gay busineesses to discriminate against truly anti-gay right-wing evangelicals (currently illegal).
posted by ETJB on
(1) The United States of America was never a libertarian society. It did not place ‘liberty’ as the highest political, social, moral or economic value. That is just revision-shit history.
(2) Libertarians want to return back to the days of ‘white only’ and ‘restricted’ signs. That pretty much sums up what’s wrong with them.
posted by ETJB on
“I’d also bet that the overwhelming majority of lesbigays would be fine with a T-less ENDA, but it’s not like anyone cares.”
It is one thing to argue that it might be better to advance federal civil rights bills gradually. America was not ready to include sexual orientation or disability in 1964 and only included sex by accident.
Yet, to cater the lowest urges of trans-phobia is just really, really low.
posted by Craig2 on
If libertarians indeed do choose ‘liberty’ above equality, then why do some forms of ‘liberty’ actually reduce substantive freedom ie the Christian Right’s concept of ‘religious liberty’, which means that they take liberties with the rights and freedoms of others? (As opposed to religious fredom and meaningful diversity of opinion).
And incidentally, given that fundamentalists are mostly educationally impaired rednecks, would the prospect of an LGBT
employer and fundamentalist professional candidate for prospective employee ever come up…???
Craig2
Wellington, NZ
posted by nhnative on
Sununu doesn’t support amending the constitution because it’s wildly unpopular in libertarian NH and because he is running so fast and hard to the left that he is in danger of out flanking rosa luxembourg. He knows his days in the senate are numbered and is desperate for any votes he can get. His “support” for gay rights has nothing to do with his libertarian values nor his fair minded approach to gay rights, but the 08 election. Now that Shaheen has announced, he’s done for.
posted by Avee on
nhative, have you sat down and talked to Sununu, as my friends at the Cato Institute have done. Or is it just more fun to slander a Republican and allege that he couldn’t possibly be acting on principle?
posted by Mark on
ETJB:
Statists want to use governmental coercion against anyone who does not agree with them. That pretty much sums up what’s wrong with you.
posted by Kellie on
There has been a lot of discussion, disappointment, and dismay within the transgender community over the recent maneuverings re. the Employment Non-Discrimination Act currently before Congress. (VERY briefly, it is a legislative act originally crafted to prohibit employment discrimination based upon sexual orientation as well as gender identity.) Controversy within the transgender community centers around the attempts by some legislative sponsors, as well as- some- LGB activists to compromise on the gender identity aspect of the bill (which I guess they see as a more difficult row to hoe) so as to hopefully gain passage of the bill to at least cover discrimination based upon sexual orientation.
I have a slightly different take on the entire proposal.
First, let me say that I deplore bigotry; I see it as indicative of a small, closed mind. On a more practical level, bigoted practices are self-defeating, a tremendous waste of resources, particularly when it comes to employment. One would think that any employer would wish to hire the most qualified person for a particular job, if for no other reason than to add value to the business, the enterprise, the bottom line. And let me also say that, to the best of my knowledge, I have never been subjected to employment-based bigotry. At this point, it is instructive to note my usage of the word bigotry (from bigot) as opposed to discrimination; they are two different things, the former almost always being negative, the latter having merits, depending upon the practice (most of us have preferences, we discriminate between one thing or another.) So that difference does need to be considered. Do we, as an open and free society, wish to criminalize the right to choose, even if the choice is unwise (as hiring decisions based upon anything other than merit are?) At some point does the proposed cure (seeking to mandate inclusion by government fiat) become worse than the- admitted- disease? This is a philosophical issue that also has real-world consequences; it really comes down to how one defines and discerns freedom (in this instance, does one’s “right” to be employed trump another’s “right” to decide whom to employ, even if based on ignorance and bigotry) and also how one defines and discerns the role of government to act in our society.
Now more to the point re. ENDA itself. My personal view is that this act should extend protections to transgender individuals as well as to LGB folk… but should only be binding in the sphere of public/government employment. Government should never be allowed to engage in any practices, including hiring, that favor- or discriminate against- any individual based upon externalities; one’s race, gender, ethnicity, faith practices, sexual practices, identity, income, etc… should play no role in a government based upon the concept of equality. Only demonstrated merit should count. The problem with ENDA is that it seeks to impose this upon private employers as well; this should cause freedom-loving folks to give pause. A government that can mandate X today can just as well mandate Y next year (and do we even want to think about what could be mandated by Z?) More practically, the market often does a very good job at weeding out un-productive practices, including employment ones; for instruction, see HRC’s own recent listing of it’s Corporate Equality Index. Companies that received a 100% rating based upon their policies toward LGBT folk ran the gamut from A to Z (well, Y- Yahoo), from financial concerns to brewers to high tech companies to defense contractors to auto makers to department stores to entertainment and tourist attractions, and more. And these were just the companies that HRC deemed as 100% beneficent. And these companies undertook these- worthy- practices all without the heavy hand of government. Why? Because it is good business, both in terms of hiring the best personnel available regardless of their personal background, as well as creating a good public image, one committed to fairness and equality. That is the way to create real, lasting, tangible progress. LGBT activists would do well to highlight and applaud these courageous- and smart- companies, and the broader LGBT community would do well to, as possible, support them with their dollars. Similarly, LGBT activists might seek to bring pressure, private and, as practical, public, upon other companies to broaden their hiring and business practices, and the broader community withhold support, purchases, etc… from those who engage in a pattern of bigoted practices.
I’m not condoning discriminatory, let alone bigoted, employment practices.; they should be confronted, and minimized. But I do believe this act goes too far in extending the government’s reach into the private sector. Even worthy ends do not justify any means.
posted by ETJB on
Mark;
“Statists” is a buzz word that libertarians, anarchists, right-wing conservatives use anytime some one suggests that the constitution might actually mean what it says.
want to use governmental coercion against anyone who does not agree with them. That pretty much sums up what’s wrong with you.
posted by ETJB on
If a libertarian opposes and actively calls for the repeal of ALL civil rights laws, then his position would be, at least, consistent.
However, when you oppose civil rights laws that include gays, but support the others, it is hard not to be accused of being anti-gay.
“Do we…wish to criminalize the right to choose”
Do we want to return to the era of ‘white only’ and ‘restricted’ signs? Do we want to return to the era where
employer’s were kings and employees were serfs? Where disabled people had few employment opportunities? Where women and gays were rountinely discriminated against? If you want to make that argument go ahead. The Libertarian Party does.
This notion that a private employer (housing, health care, banking, etc.) has a right to discriminate on the basis of race, color, creeed, ethnicty, disability, sex, or sexual orientation is to basically say that the bulk of the Civil Rights movement was evil, corrupt and injust.
No, the United States government actually has to follow the United States Constitution and the Bill of Rights. Civil rights legislation is enacted by elected legislative bodies and is entirely constitutional.
The fact that private companies chose to adopt a equal opportunity policy is great, but it does not mean much unless their is civil law to back it up.
Remember that private sector civil rights laws are generally civil and not criminal laws.
It is wonderful that a growing number of private companies have chosen to adopt a EEO policy, but how is that policy going to be enforce?
“I’m not condoning discriminatory.”
Actaully you are. You are defending the ‘right’ of certain people to take America back pre-1964. A time when discrimination was overtly practiced in the private sector and where people had few legal recourses.
Who is going to ‘confronting and minimizing’ discrimination from the sector?
posted by Last Of The Moderate Gays on
While I like many of the Libertarians’ positions, their position of not supporting ENDA while demanding equality in marriage, repealing DADT, etc. is utterly loopy.
“Do we want to return to the era of ‘white only’ and ‘restricted’ signs? Do we want to return to the era where
employer’s were kings and employees were serfs? Where disabled people had few employment opportunities? Where women and gays were routinely discriminated against? If you want to make that argument go ahead.”
Exactly. To those who believe that if there were no worker protection laws, companies would “do the right thing,” I’ve got some fabulous beachfront property in Kansas I’d like to interest you in.
posted by North Dallas Thirty on
To those who believe that if there were no worker protection laws, companies would “do the right thing,” I’ve got some fabulous beachfront property in Kansas I’d like to interest you in.
LOMG, do you know who came up with the idea of a higher “living wage” and an eight-hour workday?
Henry Ford.
On January 5, 1914, he announced two things: Ford Motor Company would start paying $5/hour, nearly twice what other companies were paying, and would institute an eight-hour workday.
The reason was simple: employee turnover and absenteeism.
It costs money, both in terms of training and productivity, to lose an experienced worker and hire a new one. Ford did the calculations and realized that he could afford to significantly raise salaries and keep his employees for less than he would ultimately pay if he maintained his high turnover ratios.
Furthermore, he realized that it cost him an extraordinary amount of money in lost productivity when people didn’t show up to work — and that a big part of the reason people didn’t show up was fatigue and fatigue-related injuries/illnesses. By limiting the workday to eight hours, he significantly reduced absenteeism.
To put that in perspective, it was over two decades (1938) before the eight-hour day and the minimum wage were enshrined in Federal law in the Fair Labor Standards Act — and the only reason they were was because the government was trying to increase employment by shrinking the size of the labor pool (banning child labor) and making it financially painful to businesses for people to work more than eight hours, thus requiring them to hire more people to cover the additional time.
As we see with the large number of companies with policies against workforce discrimination already, business will do the right thing if it is in their interest to do so. Firing or refusing to hire qualified people for non-business reasons costs money and is a bad business decision on several levels.
posted by Last Of The Moderate Gays on
ND30, granted, there are U.S. business executives who actually know how that treating employees well and with dignity, obeying the law, and holding themselves accountable is good for the bottom line.
The problem is that they are becoming more and more the minority.
As long as we have this:
http://www.usnews.com/articles/news/national/2007/10/09/a-big-fine-for-the-nations-largest-utility.html
and this:
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/23/AR2006082301729.html
and this:
http://www.latimes.com/news/nationworld/nation/la-na-discrim6oct06,1,1073070.story?coll=la-headlines-nation
and this:
http://www.usatoday.com/money/covers/2002-06-07-tyco-ceo.htm
. . . your utopian dreams of CEOs who are as pure as the driven snow is far, far off in the distance, and precisely why we need a moderate, reasonable level of protection.
Bring your beach chair and sunscreen out to Topeka . . . I’ll be there in a little while.
posted by North Dallas Thirty on
LOL….well, since you want to play that way, LOMG, as long as we have this, while there are gays who genuinely work hard and are unfairly treated, “they are becoming more and more the minority”, and that most gays demand workplace protections so they can demand sexual favors, have sex in the workplace, and punish their coworkers and subordinates for refusing — and still get promoted and receive numerous raises, much less get fired.
posted by Last Of The Moderate Gays on
ND30, thanks for proving my point.
Had you bothered to find out what happened, you would have discovered that Minneapolis demoted Bleskacheck. They couldn’t fire her outright for fear of being sued because they did not have any policies in place to address this type of workplace personal relationships, which they have since attempted to correct. They also settled with Ms. Lemon. And since at least one of the multiple plaintiffs is also gay, I fail to see how being gay is an issue here. This could just as easily been a case of hetero sexual harrassment.
So, see what happens when you have some basic, reasonable protections out there? But, you can just go on believing that most companies would do the right thing . . . I have a feeling that if you were harrassed, etc., you’d be running to your attorney to file suit . . .
Sources:
http://nl.newsbank.com/nl-search/we/Archives?p_product=MN&p_theme=mn&p_action=search&p_maxdocs=200&p_topdoc=1&p_text_direct-0=116F923E4676F3F8&p_field_direct-0=document_id&p_perpage=10&p_sort=YMD_date:D&s_trackval=GooglePM
http://cms.firehouse.com/content/article/article.jsp?id=52947§ionId=46
posted by North Dallas Thirty on
I know exactly what happened.
They couldn’t fire her outright for fear of being sued because they did not have any policies in place to address this type of workplace personal relationships, which they have since attempted to correct.
What Bleskachek did does not qualify in the least as a “workplace personal relationship” that is handled as “policy”. It qualifies on every level as quid pro quo sexual harassment AND as creating a hostile workplace environment. Bleskachek made unwanted sexual advances, took retaliatory action against people who refused her sexual advances, and openly allowed and herself participated in sexual displays in the workplace.
To put this differently, do you honestly believe that, had a white male boss openly solicited sex with female employees, retaliated against his former lovers and those who refused his advances, and carried out activities like making out in the company gym, taking naked hot tub dips while employees were present, inappropriately touching employees, and making inappropriate comments, all on an epic scale over years as outlined here, would have only been demoted “because they did not have any policies in place to address this type of workplace personal relationships”?
No. He would have been fired. Just like the chairman of Boeing, a white male, was sent packing literally within days of it being revealed that he was having a consensual affair with another individual who didn’t report to him directly and which had no material effect on the business.
What happened here is simple; a crime and misbehavior that would have gotten a white male fired garnered only a slap on the wrist because the person who perpetuated it was a lesbian — and because the Minneapolis City Council knew damn well that Minnesota’s ENDA would require her to be restored to her position if she was fired because she is a lesbian.