As the Senate prepares to take its first vote on the Employment Non-Discrimination Act (ENDA) in over a decade, prominent social conservatives and right-wing media outlets have begun peddling long-debunked myths about the measure, which would protect employees from mistreatment on the basis of their real or perceived sexual orientation and gender identity.
ENDA WOULD PROHIBIT EMPLOYMENT DISCRIMINATION AGAINST LGBT WORKERS
ENDA Would Ban Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity. According to the Huffington Post:
ENDA would bar companies from factoring sexual orientation or gender identity into employment decisions. Employers are already prohibited by federal law from discriminating over race, religion, age, gender or disability. The proposal exempts businesses with fewer than 15 employees as well as religious organizations. [Huffington Post, 4/25/13]
Most States Still Allow Employment Discrimination On The Basis Of Sexual Orientation And Gender Identity. According to the Center for American Progress:
[Center for American Progress, 10/18/12]
MYTH: ENDA RESTRICTS RELIGIOUS FREE SPEECH
Traditional Values Coalition: Enacting ENDA Will Cause “A Chilling Effect On Free Speech.” In a July 2013 report titled “ENDA Hurts Kids,” the Traditional Values Coalition (TVC) wrote:
ENDA will have a chilling effect on free speech as well as religious liberty, as those with conscience objections or religious reservations will be under the threat of lawsuits in order to accommodate this new “protected class” of transgenders. [TraditionalValues.Org, 7/7/13]
Heritage Foundation's Ryan Anderson: ENDA Would View Traditional Marriage Supporters As Bigoted. According to Heritage Foundation William E. Simon Fellow Ryan T. Anderson:
ENDA would further weaken the marriage culture and the ability of civil society to affirm that marriage is the union of a man and a woman, and that maleness and femaleness are not arbitrary constructs but objective ways of being human. The proposed law would treat these convictions as if they were bigotry. [NationalReview.com, 10/31/13]
Family Research Council's (FRC) Peter Sprigg: ENDA Is A “Direct Attack Against The Moral Convictions Of Social Conservatives.” FRC Senior Fellow for Policy Studies Peter Sprigg told The Washington Post:
“Regardless of how much money [GOP donor Paul Singer and his allies, who support LGBT rights] bring to the table, it is not to the advantage of Republican officeholders politically to support his agenda,” said Peter Sprigg, senior fellow for policy studies at the Family Research Council, one of the major evangelical groups opposing the ENDA. “Particularly in Republican primaries, the Republican Party is still strongly socially conservative. These are core convictions that people have.”
Sprigg described the ENDA as a “legislative way to declare that it's morally wrong to disapprove of homosexual conduct.” The bill, he said, is a “direct attack against the moral convictions of social conservatives.” [The Washington Post, 10/21/13]
FRC: ENDA Will Be Used To “Marginalize Christians.” According an FRC Washington Update:
Obviously, FRC isn't in favor of discrimination against anyone for any reason. But a law like this wouldn't stop discrimination -- it would encourage it against anyone with a traditional view of morality. We all know how the activist community works. Homosexuals and transgenders will use this law to marginalize Christians and take over the marketplace -- until only their “lifestyle” is promoted. ENDA isn't about tolerance -- it's about a nationwide celebration of unlimited sexual expression. [FRC Washington Update, 11/1/13]
FACT: ENDA DOESN'T REGULATE PRIVATE, PERSONAL RELIGIOUS BELIEFS
Gender Identity Expert: There Is A “Clear Line” Between Religious Belief And Anti-LGBT Harassment. According to Dr. Jillian T. Weiss, professor of law and society at Ramapo College of New Jersey specializing in gender identity issues:
It is true that employers will be required to take action against harassers, regardless of whether their motivation is religious or not. There is, however, a clear line between belief and harassment. No one is going to take away your Bible. But you can't hit me over the head with it, either.
ENDA cannot tell anyone what to believe, nor can employers. At the same time, gay employees have the right to live free from harassment on the job. In fact, it is now the law and has been since 1964 that people of all religions and walks of life have the right to be free from harassment on the job based on religion.
Co-workers who want to march up to you and say “You are going to hell to burn in the eternal lake of fire!” are not be free to do so. Will this prohibit a private employer from having a Christmas tree, because some Christian sects condemn homosexuals? No. Will it prohibit a co-worker from saying “I'm a Christian.”? No. But it will prohibit an attack on someone whether that attack is religiously motivated or not.
Anti-gay harassment is not an issue of freedom of religion. [Bilerico Project, 10/4/09]
MYTH: ENDA PUNISHES RELIGIOUS ORGANIZATIONS
Fox News' Shannon Bream: Religious Institutions Might Be Forced To Hire LGBT People. During the October 30 edition of Fox News' Special Report, correspondent Shannon Bream stated:
BREAM: Critics of the measure have long cautioned that, while the bill might be well-intentioned, the results could wind up putting religious employers in a tough spot. For example, a Christian school that worries about being forced to hire a transgender teacher. [Fox News, 10/30/13]
FACT: ENDA INCLUDES BROAD EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS
CAP: ENDA's Religious Exemption Is Broader Than Religious Exemptions From Other Title VII Protections. According to a report from the Center for American Progress (CAP):
[J]ust as religious organizations may take into account an individual's religion with respect to employment decisions, ENDA's religious exemption allows religious organizations to also take into account an individual's sexual orientation or gender identity. In other words ENDA gives religious organizations a legal right to discriminate on the basis of sexual orientation and gender identity.
By contrast, Title VII does not permit religious organizations to discriminate on the basis of an individual's race, color, sex, or national origin. Going back to our earlier example, under Title VII a Lutheran school can hire or fire a teacher for being a Mormon, but not for being a woman or for being Asian American. If ENDA passed, a Lutheran school would also be able to fire or not hire a teacher for being gay or transgender, but would still not be able to do so for being a woman or for being Asian American. In this way ENDA's religious exemption is broader than that found in Title VII. [Center for American Progress, 6/11/12, emphasis added]
ENDA Includes An Explicit Exemption For Religious Organizations. According to Section 6 of ENDA:
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 pursuant (42 U.S.C. 2000e et seq.) to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)). [S.815, Employment Non-Discrimination Act of 2013, accessed 7/2/13]
MYTH: ENDA REQUIRES EMPLOYERS TO GIVE PREFERENTIAL TREATMENT TO LGBT PEOPLE
TVC: ENDA Requires Employers To Affirm “The LGBT Lifestyle.” According to the Traditional Values Coalition:
In fact, not affirming the LGBT lifestyle by remaining silent could be construed as negative bias against LGBT individuals.
On May 20, 2013, a Department of Justice document titled, “LGBT Inclusion at Work: The 7 Habits of Highly Effective Managers,” was leaked to the public. Specifically, the document tells DOJ managers, “DON'T judge or remain silent. Silence will be interpreted as disapproval.” If the Department of Justice is already identifying silence as disapproval, then it stands to reason that silence will be argued as disapproval in the courts, and thereby used as evidence by LGBT individuals as a form of discrimination in the workplace. The document also commands DOJ managers to attend LGBT events and display LGBT-affirming stickers and literature in order to identify the workplace as “safe.” What this means is that employers and co-workers will have their religious liberties completely trampled and destroyed because they could be required, under law, to affirm the lifestyle activities of LGBT individuals. [TraditionalValues.Org, 7/7/13]
FACT: ENDA PROHIBITS PREFERENTIAL TREATMENT FOR LGBT EMPLOYEES
ENDA Prohibits Preferential Treatment, Quotas For LGBT Individuals. According to Section 4 (f) of ENDA:
(f) No Preferential Treatment or Quotas.--Nothing in this Act shall be construed or interpreted to require or permit--
(1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of actual or perceived sexual orientation or gender identity employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area; or
(2) the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity. [S.815, Employment Non-Discrimination Act of 2013, accessed 7/2/13]
MYTH: ENDA WILL TRIGGER A WAVE OF NEW LAWSUITS
Cornerstone Policy Research's Ashley Pratte: ENDA Will “Create Thousands More Lawsuits” That Will Harm Businesses. Pratte told the New Hampshire Union Leader:
Opposition locally has been less active than the proponents, but Cornerstone Policy Research (and its political arm, Cornerstone Action) has made its position known.
The groups' executive director Ashley Pratte, could not be reached for an interview Friday, but said in an email:
“If our country accepts ENDA as federal law not only would it be unenforceable, it will spur litigation that in turn could be used to intimidate people of faith in companies that can't afford lawsuits. This legislation would create thousands more lawsuits and as a result would have a negative impact on small businesses across the country if passed. [New Hampshire Union Leader, 10/28/13]
Hot Air: ENDA Would Force Businesses Into Costly Litigation. According to a June 15 Hot Air blog post:
But since the laws in question have massive political appeal, they are passed into law anyway and the real winners emerge: the lawyers. Because with the law in place, everyone who doesn't get hired or is removed for cause of any sort finds themselves with the opportunity to sue the employer under the new rules. Dollars spent in such lawsuits and settlements are dollars not available to expand the payroll and get more workers off the unemployment lines. [Hot Air, 6/15/13]
FACT: LOCAL NON-DISCRIMINATION ORDINANCES HAVE NOT PROMPTED MASS LAWSUITS
Williams Institute: Local Non-Discrimination Ordinances Have Not Caused A Spike In Litigation. According to a study from UCLA's Williams Institute that evaluated the impact of local laws requiring government contractors to adopt non-discrimination policies:
Almost all of the localities surveyed reported almost uniform compliance with the contractor ordinances, with little to noresistance by contractors. Twenty-five of the 29 localities that provided information about their non-discrimination and affirmative action ordinances reported that contractors complied with the sexual orientation and gender identity requirements without resistance. Three of the 29 localities reported just minimal resistance initially but then the contractors agreed to comply when the requirements were explained to them.
Of all the localities that responded to the survey, none affirmatively reported that there had been individual enforcement investigations or actions for violations of these contractor requirements. Twenty-eight of the 29 localities reported that no complaints of sexual orientation or gender identity discrimination had been filed under their non-discrimination ordinances. The remaining locality was unaware if any complaints had been made because discrimination complaints were handled by a state agency, rather than the local agency implementing the contractor requirements. In addition, none of these localities reported that contractors had been barred from bidding on future contracts because they did not comply with these ordinances.
The contractor requirements have been adopted, implemented, and enforced with little disruption to government operations or work, administrative burden, cost or litigation. No locality reported that these ordinances made it difficult to find qualified contractors to carry out government work or operations. None of the localities that added sexual orientation and gender identity to non-discrimination or affirmative action ordinances reported that doing so was administratively burdensome or resulted in additional administrative or contractor costs. [Williams Institute, February 2012, emphasis original]
Center For American Progress: ENDA Would Help Employers Avoid Costly Lawsuits, Reduce Legal Penalties. According to a November 2010 report from the Center for American Progress, employers “would benefit most directly” from ENDA, as it creates “unambiguous employment guidelines” to “greatly reduce the risk of a discrimination lawsuit”:
It is the employers, however, who would benefit most directly from a federal law that clarifies the boundaries of Title VII and establishes explicit protections for LGBT workers. National legislation would allow employers to adapt to unambiguous employment guidelines and greatly reduce the risk of a discrimination lawsuit facing many businesses.
Studies show that employers that institute formal mechanisms for avoiding and dealing with workplace discrimination are significantly less likely to see the initial filing of a lawsuit by an employee. Employer-initiated efforts to deal with discrimination can work to preempt legal action, quickly reducing a business's legal expenses.
If an employee does decide to sue an employer for employment discrimination and wins, good-faith efforts to deal with bias in the workplace can help to reduce the amount of damages a business is required to pay. The Supreme Court held in Kolstad that an employer's efforts to enforce antidiscrimination policies in the workplace functionally shield the employer from punitive damages. Even modest efforts to deal with workplace discrimination, then, can allow employers to avoid tremendous penalties in court. [Center for American Progress, 11/10/10]