What is ENDA? The Employment Non-Discrimination Act and religious liberty

Here are two assessments of the Democrat-sponsored ENDA legislation, the first conservative, the second libertarian.

Here’s Ryan Anderson from the Heritage Foundation, a conservative D.C. think tank.

Excerpt:

ENDA would impose liability on employers for alleged “discrimination” based not on objective employee traits but on subjective and unverifiable identities. It would create new protected classes—based on an “individual’s actual or perceived sexual orientation or gender identity”—that would expose employers to unimaginable liability. ENDA could require employment policies that undermine common sense about a host of workplace conditions, especially regarding issues surrounding gender identity.

The bill defines “gender identity” as “the gender-related identity, appearance, or mannerisms…of an individual, with or without regard to the individual’s designated sex at birth.” In other words, it creates special rights for transgendered individuals—males who dress and act as females, and females who dress and act as males—and forbids employers from considering the consequences of such behavior in the workplace.

Issues concerning gender identity are difficult. All ought to agree that young children should be protected from having to sort through questions about gender identity before an age-appropriate introduction. ENDA, however, would bar employers from making certain decisions about transgendered employees.

Although ENDA includes some exemptions for religious education, it provides no protection for students in other schools who could be prematurely exposed to questions about gender identity if, for example, a male teacher returned to school identifying as a woman.

Moreover, we can’t deny the relevance of biological sex in many contexts. An employer would be negligent to ignore the concerns of female employees about having to share bathrooms with a biological male who identifies as female. Failing to consider these repercussions raises a host of concerns about privacy rights. But ENDA would prevent taking these concerns into account.

And here is a post from Hans Bader of the Competitive Enterprise Institute, a libertarian D.C. think tank.

Meritless lawsuits that favor the plaintiff:

ENDA would harm even businesses that hire and fire based on merit, not sexual orientation. It would also erode free speech in the workplace about sexual-orientation-related political and religious issues.

Since ENDA is modeled on other employment laws that have produced many meritless discrimination lawsuits (through one-way fee shifting), ENDA, too, is likely to result in wasteful litigation and settlements paid out by employers that are actually innocent of discrimination (most employment discrimination claims turn out to be meritless). ENDA’s attorney fee provision, Section 12, uses the same language as other federal employment laws that incorporate the Christiansburg Garment standard for awarding attorneys fees — a sort of “heads I win, tails you lose” scheme under which the plaintiff gets his attorneys fees paid for by the other side if he wins, but the employer has to pay its own attorneys fees even if it wins (a win at trial typically costs an employer at least $250,000). While the language of ENDA’s attorney-fee provision is seemingly neutral on its face, similar provisions in other federal employment laws have consistently been interpreted by the courts as favoring plaintiffs under the Supreme Court’s 1978 Christiansburg Garment decision. Moreover, even if the plaintiff’s case is so insubstantial that the plaintiff only wins $1 at trial, the employer can still be ordered to pay tens of thousands of dollars in attorneys fees. For example, an appeals court ruling awarded $42,000 in attorneys fees to a plaintiff who suffered only $1 in damages. (See Brandau v. Kansas, 168 F.3d 1179 (10th Cir.1999).) These attorney fee provisions will lead to some employers paying thousands of dollars to plaintiffs just to settle weak or meritless discrimination claims.

Censoring employees who might create a “hostile environment”:

While the typical private employer has no reason to hire or fire based on sexual orientation (and few do), ENDA’sSection 4(a)(1) reaches beyond hiring and firing to vaguely defined “terms, conditions, or privileges of employment,” which courts interpret as requiring certain restrictions on speech. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court interpreted the same vague “terms or conditions” language in another statute, Title VII of the Civil Rights Act, as requiring employers to prohibit employee speech or conduct that creates a “hostile or offensive work environment” for women or blacks. The employer is liable for damages and attorneys fees if a court decides that it was negligent in failing to detect, prevent, or punish such speech or conduct. Such “hostile work environment” liability applies to each and every protected class covered by federal law, such as race, religion, national origin, and disability, not just gender. See, e.g., Amirmokri v. Baltimore Gas and Electric Co., 60 F.3d 1126 (4th Cir. 1995) (employer was liable for national-origin based taunts and harassment by plaintiff’s co-workers).

If ENDA were enacted, such liability would also cover “sexual orientation”-based hostile work environments, meaning that a company would potentially be liable for a “hostile work environment” resulting from anti-gay things its employees say (even if those employees’ sentiments are at odds with the company’s own views or policies). Thus, to avoid liability, an employer might have to silence employees with political opinions that are perceived as anti-gay, and prevent such employees from expressing political views such as opposition to gay marriage or gays in the military that could contribute to a “hostile work environment.”

Quotas in hiring:

It is conceivable that if ENDA is passed, a civil-rights agency could use it to pressure some employers to adopt sexual-orientation-based hiring goals or veiled quotas, notwithstanding the language of Section 4(f) of ENDA.  Activists have already pressured President Obama to mandate sexual-orientation-based hiring goals for government contractors.

Bathroom privacy:

Finally, in addition to banning sexual-orientation discrimination, ENDA also contains “transgender rights” provisions that ban discrimination based on “gender identity.” Similar prohibitions in state laws created legal headaches for some businesses.

I have to admit, I have been operating for the last decade as if this law was already in effect, since I don’t want to be singled out for reprisals by management if a law like this is enacted. If you already have a reputation as being pro-marriage and pro-chastity in your workplace and this law gets enacted, you will become a target for censorship and even termination. It would be much easier for your employer to pre-emptively fire you under some pretext than to have to get stuck with millions of dollars in legal fees and penalties for one of these “hostile work environment” lawsuits. I can envision scenarios in which people on the left will solicit your opinion openly in the workplace on controversial issues like gay marriage, etc. and then prosecute you for anything less than full affirmation and enthusiastic celebration of their views. It’s already happening in the military now.

It’s very important for Christians to consider who they talk to and what they talk about in the workplace. You might think that you have free speech rights in America, but you don’t. That is all going away now because of the gay agenda and the judicial activism in the courts. This is especially true for men who have to provide for their families. If you are going to say anything critical of the secular left, understand that they are fascists, and they will hurt you any way they can. These are not people who believe in human rights. They believe in using power to destroy anyone who offends them by mere disagreement.

3 thoughts on “What is ENDA? The Employment Non-Discrimination Act and religious liberty”

  1. It’s very important for Christians to consider who they talk to and what they talk about in the workplace. You might thing that you have free speech rights, but you don’t. That is all going away now because of the gay agenda and the judicial activism in the courts. This is especially true for men who have to provide for their families. If you are going to say anything critical of the secular left, understand that they are fascists, and they will hurt you any way they can. These are not people who believe in human rights. They believe in using power to destroy anyone who offends them by mere disagreement.

    We really don’t have protected free speech, do we?

    Like

  2. Just what we need, another law that creates another Victim Class.

    I can guarantee EOE and other forms of Affirmative action type programs forcing companies to must have X number of transgender personnel for every Y numbered white male personnel. It’s hard enough to find a job or move up in a company with just dealing with these barriers to thanks to the current Victim Class Creation Laws.

    Like

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