Nearly 40% of out gay and lesbian employees have experienced some form of employment discrimination. A larger percentage have been harassed due to their sexual orientation. Conditions for transgender employees are much worse. 90% report being harassed while nearly 50% have been denied employment.

Nevertheless, let’s don our hip-waders and make our way through the Heritage Foundation muck:

Problems with ENDA

Employers should respect the intrinsic dignity of all their employees, but ENDA is bad public policy.

That’s not a problem. That’s just saying “it’s baaaad.” Discriminating against LGBT employees does not respect their “intrinsic dignity.”

Concerns about ENDA unite civil libertarians concerned about free speech and religious liberty, free marketers concerned about freedom of contract and government interference in the marketplace, and social conservatives concerned about marriage and culture.

That’s an unsupported statement. It’s also irrelevant. Heritage behaves as if it were a free enterprise, limited government, individual liberty organization. The simple truth is that there is little difference between Heritage Foundation and Family Research Council. Both organizations promote a world view of Christian supremacy which includes a lack of respect for LGBT citizens. ENDA is not about them. ENDA is about the people whom they oppress.

Civil Liberties. ENDA tramples fundamental civil liberties and unnecessarily impinges on citizens’ right to run their businesses the way they choose. Individuals should be free to form associations and contracts according to their own beliefs and should not be coerced into accepting the federal government’s set of values.

On that basis we should repeal that 1964 civil rights act. What Heritage is claiming is that businesses should have the right to unfairly discriminate based on innate characteristics of an employee that have nothing to do with their workplace competence.  Half a century ago, these same good Christians would refuse to hire Jews. And if they did, they were not treated fairly.

Free Market. ENDA would further increase federal government interference in labor markets, potentially discouraging job creation. ENDA does not protect equality before the law, but creates special privileges that are enforceable against private actors. It would impose liability on employers for alleged “discrimination” based on subjective, self-disclosed identities and not on objective employee traits.

That has not been the case in the states that prohibit this kind of employment discrimination. Where are the cites? In this country, equality is not a special privilege.

Social. 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. ENDA would treat these moral convictions as if they were bigotry.

Sorry Heritage but in the workplace that is bigotry. People should be hired and achieve advancement based on their ability to do a job. The notion that this has anything to do with marriage equality is absurd. If people are legally married then they are legally married.

Sexual Orientation and Gender Identity Are Unlike Race

Jim Crow laws represented pervasive, onerous, and legally enshrined obstacles to employment based on race. There is no similar history of society-wide legal prohibitions on employment based on sexual orientation or gender identity.

That is simply untrue. Gays, lesbians and transgender individuals do not enjoy workplace equality. It might be quieter and more secretive than Jim Crow was but it is no less apparent (see my introductory paragraph).

Voluntary actions and market forces have emerged that undermine the clamor for federal intervention: for example, 88 percent of Fortune 500 companies prohibit employment decisions based on sexual orientation.

First of all, it should be 100%. More importantly, those 500 companies employ only a small fraction of the US workforce.

While race is usually readily apparent, the groups seeking special status under ENDA are not defined by objective characteristics. Sexual orientation and gender identity are commonly understood to be subjective, self-disclosed, and self-defined.

Equal rights are not a special status. The fact that sexual orientation might not be “readily apparent” is irrelevant. Supervisors and coworkers ask questions all the time  (often intentionally) that would lead people to discern the sexual orientation of an employee.

Unlike race, sexual orientation and gender identity are usually understood to include behaviors. Decisions reasonably taking into account the behavior of employees are core employment decisions, best left to businesses themselves—not the federal government.

This is spectacularly homophobic and offensive. This is, after all, the organization that is headed by Jim DeMint. Are they saying that the sexual behaviors of people in their homes has something to do with their performance in the workplace? Exactly what “behaviors” are they referring to that might “reasonably be taken into account” in employment decisions? I’d sure like to know.

Ultimately, the opposition to ENDA is based on a determination to disapprove of LGBT citizens. Some of these people resent the added competition; Many of these people would like to have a work environment comprised exclusively of white male heterosexual Christians.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.