Let's just put it out there - employment discrimination on the basis of sexual orientation is wrong. Yet it is perfectly legal in most of the United States. There is no federal law prohibiting employment discrimination on the basis of sexual orientation. Currently, sexual orientation discrimination is a matter of state law, and only 21 states (and Washington, DC) have enacted laws that protect LGBTQ workers. The Employment Non Discrimination Act ("ENDA") seeks to end this by making discrimination on the basis of sexual orientation illegal under federal law. ENDA was first proposed in 1994 but has repeatedly failed to become the law of the land. Given the recent mid-term elections, perhaps it will stay that way. That is not a good thing, and we should all do our part to see that this critical law be passed and that all employers with 15 or more employees be prohibited from such discrimination in the workplace (15 is the minimum number of employees an employer must have to be considered an employer under federal law).
The arguments that I have heard against ENDA boil down to two points: (1) it will lead to frivolous lawsuits and (2) sexual orientation discrimination is OK in some circumstances.
The first argument is nothing more than a misdirection. Any law can lead to frivolous lawsuits - but that does not mean that we should not pass it. For example, there are laws against discrimination on the basis of race. And there are certainly frivolous lawsuits filed under these laws. But that does not mean that we should permit racial discrimination just to avoid some frivolous lawsuits. In fact, the logic is the opposite - a few frivolous lawsuits is the price we pay in order to protect against racial discrimination.
The second argument, with all due respect to those who make it, is little more than homophobia cloaked in the language of civil liberties. Yes, of course this is a free country, and yes of course we are all free to discriminate as we choose in many respects. But ENDA does not regulate how we think or who we choose to associate with in our personal lives. Rather, ENDA prohibits companies with 15 or more employees from discriminating against people on the basis of sexual orientation. And while some may think that it imposes an unfair responsibility upon business owners, they should also keep in mind the following three points: (1) all laws impose certain restrictions and/or responsibilities; (2) these same businesses receive considerable benefits from the same government that is imposing these laws; and (3) all that they really have to do is refrain from bigotry - is that really so hard to do?
Be proactive. Write to your representative and encourage the passage of ENDA. And if you witness workplace discrimination, stand up and call it out.
And if you feel that you have been a victim of employment discrimination on the basis of sexual orientation, contact us. We can probably help.