2012: the ENDA Time

(image: jmortonscott, flickr)
(image: jmortonscott, flickr)

??Ponder this.

According to the 2011 Out & Equal Workplace Survey, nearly three out of four – or 74% – heterosexual adults agree that how an employee performs at his or her job should be the standard for judging an employee, not whether or not they are transgender or if they are gay, lesbian or bisexual. Most of those (roughly 6 out of 10) indicated not merely agreement, but strong agreement with that statement.

The survey also found that a significant majority of Americans mistakenly believe that such protections already exist. When asked whether an employer can fire someone because they are gay, lesbian, bisexual, or transgender, only 8% of all Americans knew that it was legal to do so today under federal law.

What is the reality?

There is no federal employment protection based on sexual orientation or gender identity. It is still legal to fire someone solely on the basis of their gender identity or expression in 38 states – and 29 states based on sexual orientation. At the local level, the patchwork frays even further, where city and county limits literally mark the boundaries of protection.

While the number of companies that include sexual orientation and/or gender identity in their employment non-discrimination and harassment policies continues to grow (as evidenced by the Human Rights Campaign’s Corporate Equality Index), fair and equal treatment in employment matters is often out of reach for many in the GLBT community.

We face a conundrum.

The American public not only believes in GLBT workplace equality, a majority thinks it’s already the law of the land. So how do we convince our lawmakers to make perception match reality and pass the Employment Non-Discrimination Act (ENDA)?

Some argue that marriage equality is where the political focus needs to be, since ENDA has “no hope” of passage with a Tea Party-controlled GOP House and a dysfunctional Senate. Some have argued that we should put off any push for this during an election year… that there is more political punch in getting the GOP to tilt to the anti-gay right than in working towards a bi-partisan victory on workplace equality. “Focus on re-electing President Obama and regaining a Democratic majority,” is what you hear in too many professional circles.

To make matters worse, important – if sometimes imperfect – workplace equality gains have allowed some in our community to argue that the expansion of current federal workplace protections to include sexual orientation and gender identity through ENDA is unnecessary. (That argument usually comes from someone already living in a state or locality that has enacted the very self-same employment protections.  Hello GOProud. Ahem.)

How do we know this is impossible if we don’t try?

First, there is no reason why our political efforts need to be stalled simply because it’s an election year. Moreover, there are arguments to be made to the various political factions that may convince them to move now, rather than later. And as to focusing on Presidential re-election and a Democratic resurgence – all well and good, but can’t we use this political season to extract more than promises from our so-called allies on the Democratic side? Isn’t about time we hiked the fees on withdrawals from the gAyTM?

We need to push the issue and keep working it until it happens – just like the repeal of DADT. And frankly, the repeal of DADT should make the arguments easier.

ENDA is in our national economic interests.

Beyond the individual, personal hurt that workplace inequality inflicts, the current legal patchwork is simply unsustainable – and ultimately bad for business and our national economy.

The U.S. economy may not be growing as quickly as we would like, but it is growing. Many signs point to that growth picking up. And the macro demographic trend of “boomer” retirement will soon reassert itself as the recession recedes.  An educated, flexible and mobile U.S. workforce has always been critical to our nation’s economic well-being and security: a need that will only become more pronounced over the course of these next decades.

Replacing the current legal patchwork with a consistent federal standard through ENDA will:

  • Simplify the regulatory framework for companies with operations across multiple jurisdictions
  • Create a more mobile and productive national workforce (GLBT and straight) by removing barriers to employment for qualified workers
  • Help American businesses attract and retain employees (and reduce the cost of replacing them by billions of dollars annually)

ENDA will not:

  • Apply to religious organizations as defined in Title VII of the Civil Rights Act of 1964
  • Create preferential quotas for GLBT people
  • Apply to small businesses that employ 15 or fewer people
  • Require businesses to provide domestic partnership or same-sex marriage benefits*
  • Require businesses to provide transgender medical or surgical benefits*
    (*Based on the results from 10 years of the HRC Corporate Equality Index, it’s pretty clear that the marketplace will drive most employers to parity in these areas in order to be competitive – but that’s not driven by statute.)

In short, ENDA simply removes an unnecessary barrier to employment for otherwise qualified workers and helps businesses fill their employment needs – what could be more American than that?

This is why getting ENDA passed through Congress is critical: this year.

  • If you’re a libertarian, ENDA is all about meritocracy and economic liberty – where the focus is on an individual’s ability to perform the work and the liberty needed to find employment based on that ability.
  • If you’re a social conservative, ENDA specifically carves out exemptions for religious institutions based on their respective doctrine and won’t affect any small business employer with fewer than 15 employees.
  • If you’re a business-minded, fiscal conservative, ENDA simplifies regulations and promotes having a ready-to-work employee base to help drive our country’s economic engine.
  • If you’re a progressive, ENDA should appeal to your notion of equality under the law – and as another way to help bolster the middle class by providing new opportunities for employment and growth.

All of our national GLBT organizations need to aggressively get behind ENDA – and we, as individuals, need to push the issue with our own elected officials. Go to the candidate forums. Ask them if they support workplace equality for GLBT citizens. Ask them if they agree with the vast majority of Americans who believe that sexual orientation or gender identity have nothing to with how a person performs their job. Pin the bigots down.  Lift our allies up.

The American public gets it. Corporate America gets it. It’s time for us to help Congress catch up to where the rest of us are in the 21st century and pass this legislation. This Congress. This year.

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