The long-sought Employee Non-Discrimination Act was re-introduced in Congress this week. Senate passage appears likely, with a smattering of Republican support. However, it remains unlikely ENDA will make much progress in the Republican-controlled House.
When Democrats controlled both chambers during Obama’s first two years in office, ENDA was kept bottled-up in committee. Democrats said they feared Republicans would demagogue the issue, and some would have, but with a large majority of Americans favoring passage of workplace nondiscrimination legislation protecting gay Americans, it’s more likely this “wedge” issue would have worked in the Democrats’ favor. Indeed, not passing ENDA (in line with its attempt to scuttle repeal of “don’t ask, don’t tell” and making no serious attempt to pass immigration reform), allowed Obama and congressional Democrats to run on the issue and fire-up their base.
And then there’s this, as Metro Weekly reports:
the White House continues to delay on a long-called-for executive order that would prohibit federal contractors from LGBT workplace discrimination—a move that would protect 20 percent of the civilian workforce.
It was a little more than a year ago [White House senior adviser Valerie Jarrett] informed advocates during a meeting at the White House that Obama would not sign such an order at that time, despite promising to do so as a candidate for president. Pressure has increased on the White House to act since then, with … [advocates] calling for Obama to sign the executive order and arguing such a move would build momentum for ENDA. However, the president hasn’t acted, instead arguing … that the administration supports passage of an inclusive ENDA that protects everyone….
In April 2012 after the White House announced no action would be taken on an executive order, advocates…were told the White House would conduct a study on LGBT workplace discrimination. One year later, with ENDA on the verge of reintroduction, no study has been released. When asked for an update on the reported study, White House spokesman Shin Inouye stated, “We continue to study the issue.”
ENDA isn’t going anywhere in John Boehner’s House. Democrats would like to capture the House. Obama and his advisers believe not signing an executive order will help them to do that.
More. As long-time readers know, I’m of two minds about ENDA. It’s another federal regulatory scheme, and there are relatively few documented cases of overt workplace discrimination by private-sector employers. Small employers would face added liability risk when they hire and then fire (or fail to promote) openly gay employees, who could bring baseless yet costly suits which would most often be settled with a payoff, which is how employers most often resolve gender- and race-based discrimination suits. Avoiding this risk is one reason why the Americans with Disabilities Act (ADA) has actually led to a decrease in the hiring of people with disabilities.
And there is the libertarian argument that business owners should be able to hire those who they want to hire.
On the other side, passing ENDA sends a strong message that gay people deserve similar workplace protections as other minorities (although ENDA , quite rightly, does not include “disparate impact” enforcement provisions, which in civil rights and equal-employment statutes have led to de facto gender- and race-based preferences).
Federal contractors agree to accept numerous additional restrictions in order to qualify for government work, so I’m less two-minded about issuing an executive nondiscrimination order that applies to them.
27 Comments for “The ENDA Tease”
posted by Tom Scharbach on
Democrats would like to capture the House. Obama and his advisers believe not signing an executive order will help them to do that.
And you know that how?
posted by Mike in Houston on
All Obama is doing by not signing an executive order is make the gAyTM close down for the 2014 cycle. Depressing the base in a low turnout election – yeah, that’ll win back the House.
posted by Houndentenor on
At least you are admitting that the reason we can’t pass ENDA is that Boehner is the Speaker.
The holdup when Democrats had the majority was over inclusion of transgender people in the bill in addition to gays. It’s a good cause but it derailed any hope of passing the bill to include gay people in ENDA. That’s what really happened, not some grand plot to…well I have no idea what that would have been.
I always think it’s funny when Republicans make it sound like Democrats have all these grand plots and schemes. Have you ever watched the Democrats? There’s not much organization and even that reverts to squabbles and in-fighting very quickly. Like the Republicans do now (but didn’t for a very long time). There is no party discipline among Democrats and very few long range plans. There’s no conspiracy here to deny gay rights for electoral victory down the road. In fact, it took a great deal of effort to get them to support gay rights at all because they all feared electoral backlash from moderates if they did.
Stephen is obsessed with this idea that the Democrats want to deny gay rights to win votes. That’s hilarious since that was the tactic Republicans used for over a decade and he never objected to that so far as I know.
posted by Jorge on
A drip-drip-drip of the same evidence repeated over and over again isn’t an obsession.
It’s a law of reality.
posted by Tom Scharbach on
Have you ever watched the Democrats?
It is best not to watch sausage being made, or Democrats coming to a decision. Just saying. But it is based on experience. I’ve made sausages for fifty years, and been a Democrat for a long time. Democratic internal politics are like Italian politics — chaotic is a charitable description.
posted by Jorge on
At least you are admitting that the reason we can’t pass ENDA is that Boehner is the Speaker.
The holdup when Democrats had the majority was over inclusion of transgender people in the bill in addition to gays. It’s a good cause but it derailed any hope of passing the bill to include gay people in ENDA. That’s what really happened, not some grand plot to…well I have no idea what that would have been.
Are you suggesting the current ENDA bill won’t do that?
“WASHINGTON — Hoping to get a lift from the changing tides on gay marriage, a bipartisan group of senators introduced legislation Thursday that would ban job discrimination based on sexual orientation or gender identity.”
Yeah. You might want to correct yourself on this one.
ENDA has no chance at passing.
posted by Houndentenor on
ENDA has no chance at passing.
No, it doesn’t which is why I keep arguing that it’s pointless to put it up for a vote at this time. Both parties do this (put up a bill they know won’t pass to force the issue). Congress has plenty to do without these exercises in futility. I don’t like political games and never have.
But we aren’t going to get ENDA passed with a Republican majority in either house. Everyone knows that. The rest is Stephen’s lame attempt at putting the blame on Democrats for something Republicans have no idea of doing. Yes, the Democrats are spineless crapweasels. Everyone knows that. That’s why it’s so sad that they are a better option than the GOP.
posted by Jorge on
But we aren’t going to get ENDA passed with a Republican majority in either house. Everyone knows that.
I think it’s possible over time if it becomes as big a public issue as DADT did. The stability and intensity of political support needs to keep increasing.
However, with ENDA I think we have a situation where only the base really cares about it. Thus ENDA gets dragged toward the left as it is written instead of toward a compromise that would increase its chances of passing.
This is where some people here point to the fact that Democrats are solid because there are severe consequences in that party for voting against GLBT-type legislation. But that doesn’t apply any consequences to internal maneuvering, or to a lack of passion on the issue. With DADT, consequences were threatened. The base alone doesn’t get bills to the floor.
The same forces that get Democrats motivated also serve to reduce the motivation of Republicans to oppose putting gay rights legislation. We saw this in New York when gay marriage was put to a vote a second time.
posted by Mike in Houston on
Just curious as to what ‘dragging to the left’ means and what compromise you think will make this happen… Cut out transgender protections? Add a so-called religious liberty clause that lets employers not already covered skirt non-discrimination laws?
posted by Jorge on
Just curious as to what ‘dragging to the left’ means
The gender identity part.
and what compromise you think will make this happen…
Getting to that point is years away and I really wouldn’t know. We’ve had “trigger” conditions used successfully in the DOMA repeal, and religious liberty protections used with limited success in state marriage equality laws. It would involve seriously listening to Republicans when they are at the “maybe” point.
posted by Houndentenor on
That was nonsense. What is left about nondiscrimination? There is no “dragging to the left”. Either you are allowed to discriminate against gay people in employment or you are not. There is no left or right on that. I fail to see that the problem is failure to compromise when the problem is that Boehner isn’t going to let the bill come up for a vote. How does one compromise with someone not interested in any bill at all.
Referencing DADT is interesting because if that had not passed before the current Congress was sworn in that would still be on the books as well. Yes, the Democrats screwed that up. But what you and Stephen see as a vast left-wing conspiracy I see as disorganization and spinelessness among the Democrats. That plus fear that being too pro gay will cost them their seat. Whether or not that fear is real (and in some districts and states it’s justified) matters less than if that fear affects how they vote.
We have a mess. No the Democrats aren’t good enough on gay issues. But the Republicans are terrible. The only hope of passing ENDA is to have a Democrat as Speaker so it can at least come up for a vote. Yes, we will then need a few Republicans to vote for it as well. But how one might vote is irrelevant if the vote is never held at all. That’s why I see the whole issue at this point as a big charade.
posted by Tom Jefferson III on
{sigh} Again, what the majority of Americans polled nationally is actually not quite what most politicians and the two major parties really care about. It is what Americans in a GIVEN STATE OR DISTRICT think about ‘x’ (i.e. ENDA) and how much do they really care about ‘x’. We do not really have national elections {maybe we should, but that is a different argument}.
So, yeah their are certain States and Congressional Districts where voters tend to be more conservative on social issues and thus supporting ENDA (even without gender identity included) might be something of a problem.
This is where the Republican is probably anti-gay and the Democrat is probably going to be a ‘Blue Dog’ or conservative Democrat.
posted by Houndentenor on
I think we saw this month how a special interest group can override the will of the majority (in the case of background checks as well as ENDA, supermajority) of Americans. The GOP has been hijacked by religious extremists and the Democrats are scared of their own shadow. This is no way to run a government.
posted by Tom Jefferson III on
Yes, well sadly you do not actually need a majority or even a super majority to win an election or a re-election. It all comes down to a plurality which means that it often falls to ‘swing’ voters that really do not pay too much attention to the state/world around them and generally can be swayed by whichever interest group has the most money or which ever candidate can be sold as a good beer drinker….
posted by Houndentenor on
Or more specifically, you can have your party gerrymander your district so that it’s safe. That way your only concern is a primary challenger and even then only one who can raise enough money to get their message and name before the public. It’s why most Congressional seats are safe even though Congressional approval ratings remain dismal year after year.
posted by Houndentenor on
“…there are relatively few documented cases of overt workplace discrimination by private-sector employers.”
Where do you live Stephen? In a state with no ENDA protection, like most gay people? Or in a liberal area where it is illegal to fire you for being gay?
It seems like most of the homocons love living in a very liberal area enjoying the benefit of the hard work of the very “gay leftists” they openly despise. Maybe they should live in Mississippi or Alabama for awhile (and not in a liberal college town) and report back on how there’s no anti-gay discrimination in America today.
posted by Tom Scharbach on
“… there are relatively few documented cases of overt workplace discrimination by private-sector employers.”
Note the carefully selected words: “relatively”, “documented” and “overt”.
“Relatively” — relative to what? The workforce as a whole, or the 1-2% of the workforce consisting of gay and lesbian workers in industries that are not havens for gays and lesbians?
“Overt” — What does that mean? An employer coming right out and saying “You’re fired because you’re queer”?
“Documented” — In states with anti-discrimination laws, business owners obey the law for the most part, so few cases are documented, because the law does have an effect. In states without anti-discrimination laws, nothing is documented.
Wisconsin has the oldest state anti-discrimination law covering gays and lesbians in the nation. It received bipartisan support in the legislature, and was signed into law by a Republican governor. That was back in the days before the Republican Party became a subsidiaty of the Family Research Council, of course.
posted by jared on
I think Stephen chose his words careful to convey a specific point. ENDA would prohibit employers from having overt (yes, it has a meaning) policies against gays, but if they have covert policies or hidden biases, it’s not going to do much because it doesn’t include “disparate impact” (which counts the number of employees in a protected class and assumes discrimination if they don’t come up roughly to numbers in the general population). That why disparate impact can favor less qualified minorities — employers need to make their numbers or face the assumption that they discriminate.
ENDA won’t do that. So yes, we are talking about overt discrimination by private sector employers that can be documented. Exactly as Stephen phrased it.
posted by Tom Scharbach on
I understand Stephen’s words and the context in which he is using them.
It is the context in which those words are used (“relatively few documented cases of overt workplace discrimination“) — Stephen’s implied assertion that the incidence of workplace discrimination against gays and lesbians is low enough so as to be unimportant — that I was commenting about. I don’t doubt that Stephen is right, given the qualifiers, but his qualifiers ensure that only the tip of the iceberg is included in his sample.
Try this sentence on for size: “Relatively few same-sex couples are legally married in the United States.” True, but does it accurately describe the larger problem?
posted by Jorge on
Federal contractors agree to accept numerous additional restrictions in order to qualify for government work, so I’m less two-minded about issuing an executive nondiscrimination order that applies to them.
Well, I must say, I’m intrigued, and I’m a little happy to see a good rationale for such an executive order.
So long as a good rationale exists, I’m happy to pipe down on this one.
posted by JohnInCA on
Another problem ENDA has with passing is that a lot of people think it already has. Even legislators that have voted *against* it forget that it hasn’t passed.
It’s hard to get people fired up to pass something they think is history.
posted by Houndentenor on
Exactly. I have this discussion at least once a week. “They can’t fire someone for being gay. That’s discrimination!” Well, yes, they can and sometimes they do. it’s not against the law in most states including the one where I live now (and hopefully not for much longer).
posted by kosh iii on
“Maybe they should live in Mississippi or Alabama for awhile (and not in a liberal college town) and report back on how there’s no anti-gay discrimination in America today.”
Yes. Come be an effiminate gay man in Dayton TN(home of the Scopes Monkey Trial) or Oneonta AL.
posted by Mike in Houston on
A few points on this whole issue:
1) The American public thinks that you shouldn’t be discriminated against in employment based on sexual orientation and gender identity / expression.
2) As JohnInCA notes, most Americans are under the false impression that federal non-discrimination laws already include LGBT — this is for a variety of reasons, not the least of which is that many work for a company that has that as part of their non-discrimination policies (thank you HRC Corporate Equality Index).
3) ENDA IS getting short shrift in terms of political focus because of the advances in marriage equality — but also, and I think this is a valid reason for getting the debate out of DC, because too many (if not all) of the LGBT community representatives on this issue live in areas that already have these protections. It’s hard to get motivated to work for something you already have… and there is a noted disdain for those of us who live and work in the reddish, fly-over states.
4) Congress (and the Executive) generally lag behind the American public and corporate America when it comes to LGBT rights — due to political LGBT-phobia on the left and if not outright LGBT antipathy, then certainly kowtowing to the rabid voices of intolerance on the right.
Jorge is wrong to suggest that there is some sort of compromise area that Republicans in the “maybe” camp can be persuaded to go — their leadership is far to beholden to the Tea Party and Religious Right (not that there’s much difference — see Pew Research) to allow even a symbolic vote of conscience.
One way or another, ENDA will come back the front burner after the Supreme’s rule in June. If marriage equality is advanced or held back, the path forward on that issue will be determined. That lets the oxygen back in the room for working on ENDA… and we need to be ready for that. The President could kick-start that with an executive order — but he won’t move without a shove from us. (Maybe we can get the VP to make a statement… he’s already thinking about 2016 as it is.)
posted by TomJeffersonIII on
—It’s hard to get motivated to work for something you already have… and there is a noted disdain for those of us who live and work in the reddish, fly-over states.
Yes. If you look at the States that do not have sexual orientation covered in their civil rights code, they tend to be ‘reddish’ (oftentimes with larger rural populations) states.
posted by Tom Jefferson III on
Heck, Minnesota added sexual orientation/gender identity to its civil rights code in 1993. A bit before my time, but I hear it was one of the first states to do it.
The Republicans did try to repeal it some years ago, it was one of the pet projects of the then-GOP governor (Tim P), but they failed and now its (the gay rights debate in St. Paul) is all about gay marriage.
posted by Tom Scharbach on
A new study of LGBT workers provides an interesting insight into the need for ENDA.