It has been almost 20 years since the Employment Non-Discrimination Act was first introduced, yet it has never passed, despite widespread public support. Similar bills languish at the state level as well. Libertarian-leaning Republicans say they aren't opposed to the bill on moral grounds but aren't convinced it is needed or makes fiscal sense. All too often, though, progressives focus entirely on the social justice arguments and fail to address the concerns of libertarian-leaning Republicans. The following are some of the most common comments expressing skepticism about ENDA-type bills that I hear, and how I answer each.
Q: "You guys are winning. Why can't you just wait for it to play out?"
Real people suffer real consequences while we wait. That wait could be a very long time. Plus, I don't think leaders of the civil rights movement of the '50s and '60s would have accepted requests to sit tight while the culture changed, either.
Q: "I don't think you can change people's minds with a law, and companies can't tell people what to believe."
Of course you can't. However, companies can tell people how to behave at work. The benefits of a workplace that prevents discrimination have been very well-studied. Better health, more job satisfaction, and more commitment to employers are all strongly correlated with a safe work environment.
Q: "Wouldn't a company that allows discrimination be at a competitive disadvantage and go out of business? So how is it the state's problem?"
I know a lot of LGBT service members who are looking to get out and use their G.I. Bills or post-9/11 benefits or simply find a job in the defense industry when they leave. They represent a lot of money going into local economies either way. When they choose to go to a state with more LGBT-friendly laws after they leave the service, it isn't companies that lose money. It is the state that loses the revenue.
Q: "This is going to open the floodgates for frivolous lawsuits and harm economic growth."
We all know correlation doesn't imply causation. However, it is worth noting certain correlations when it comes to pro-LGBT workplace laws. For instance, 16 of the 20 states with the highest per capita income have employment nondiscrimination laws for LGBT people. Also, 16 out of the 20 states with the highest educational attainment have these laws. However, of the 20 states with the highest percentage of the population living under the poverty line, only one has LGBT workplace protection laws.
However, based on the government's own data, there is almost zero correlation (.0245) between LGBT employment laws and GDP growth. While it may be argued that LGBT workplace protection laws may or may not actually promote a better-paid, better-educated workforce (the correlation-vs.-causation argument), the numbers definitively say that the laws do not hurt economic growth.
Q: "This will disproportionately affect small business owners. They can't possibly support this law."
Not true. A recent poll found that 67 percent of small business owners support laws that prevent discrimination against LGBT people in the workplace.
Q: "Why would we need these laws when a lot of companies already have protections in place?"
Most people don't work for these large firms.
However, even if a firm has a policy on the books, other enforcement mechanisms need to be available. If you are familiar with the recent military sexual assault scandals, though, then you should understand why having external oversight mechanisms is so important. Just like Congress is realizing that adjudicating claims of sexual assault needs to go outside the chain of command in the military, claims of harassment and discrimination on the basis of sexual orientation and gender identity need to have recourse outside the people who are either potentially perpetrating or covering it up.
Q: "Why have this or the 1964 Civil Rights Act Title VII protections in the first place? If someone doesn't like their work environment, then they can just leave."
We all know there are plenty of awful people out there who would take advantage of this situation to the maximum extent possible. The comments about a Cheerios commercial featuring an interracial family are a sad reminder of what happens in an unregulated environment.
No one should be subjected to a hostile workplace environment to begin with. Telling them to find a new job if they don't like it is a form of blaming the victim. This is why there is very little support for eliminating the 1964 Civil Rights Act and overwhelming public support for including sexual orientation and gender identity in employment protections.
There are still plenty of really hateful people out there, and letting them run amok in the workplace won't make us more productive.
Q: "A lot of court decisions already support gender identity as a protected class. Why are we including them in this bill?"
Case law about this is still very unsettled. Even lawyers who are experts in the field can't agree what they really mean. Most HR departments aren't aware of the case laws covering the offices they work in. Having one, unified law simplifies decision making by businesses, raises awareness, and potentially prevents lawsuits.
Q: "So what's the upshot of all this?"
Almost 75 percent of the public and two thirds of small business owners support these types of laws. They definitely don't hurt growth and cost next to nothing. Empirical and anecdotal evidence suggests it encourages a more skilled, educated workforce while reducing poverty. According to the meta-study by the Williams Institute, there aren't any proven drawbacks. The portions of the population opposed to this are a shrinking demographic.
The numbers say ENDA-type protections can only help economically. Politically, supporting ENDA can only help you in the long run as Millennials become the dominant voting block. The honest-to-goodness numbers and research all point in the same direction. This should be a no-brainer.