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.