By Angela D. Giampolo
On Nov. 7, more than 60 Senators — the number required to avoid filibuster — voted to pass the Employment Non-Discrimination Act (ENDA), breathing life into a bill that has equality advocates ecstatic about what positive implications it will have for the LGBT community. The bill’s final Senate vote tally was 64-32. Despite the fact that Democrats maintain a majority in the Senate, a total of 10 Republican Senators voted for ENDA’s passage in a show of bipartisan support, including Pennsylvania’s own Pat Toomey.
ENDA would ban workplace discrimination based on sexual orientation and gender identity, and is modeled closely after the non-discrimination portions of Title VII and the Civil Rights Act of 1964. Laws banning harassment based on race, gender, age, ethnicity, religion, and disability, would be amended to include sexual orientation if the bill becomes law.
Executive Director of the American Civil Liberties Union (ACLU), Anthony D. Romero, issued a statement on Nov. 7 following ENDA’s passage. “As this bill continues to move forward, it is critically important to ensure that it, like other landmark civil rights laws, protects as many people as possible from indefensible workplace discrimination.”
Romero’s concern about protecting as many people as possible is not without merit. ENDA has come under fire by some of its biggest initial supporters thanks to religious and small business exemptions that have the potential to perpetuate LGBT discrimination.
Houses of worship and other religious institutions and affiliates, as well as employers with 15 employees or less, will have looser restrictions and be allowed to continue considering LGBT status in employment decisions. ENDA advocates in the Senate maintain that the bill’s initial passage will pave the way for amending these discriminatory loopholes in the future.
The biggest hurdle facing ENDA currently is passage in the House of Representatives. Speaker of the House John Boehner has publicly voiced his opposition to this bill citing “frivolous litigation” and “job loss” as negative consequences of such legislation.
For LGBT employees in Pennsylvania and other states without protective laws, job loss is the status quo for targets of discrimination, and litigation often is the only mechanism for ensuring justice or compensation to the injured party. Republican Sen. Rob Portman of Ohio, Boehner’s home state, was one of the Republican votes for ENDA in the Senate.
Only 21 states ban sexual orientation discrimination by statute, or state law. LGBT individuals in the other 29 states, including Pennsylvania, run the risk of facing an adverse employment decision by simply being themselves in the workplace. It has been proven time and again that “happy” workers in safe environments have higher productivity than those persecuted for their LGBT identity. It increases overall productivity and allows LGBT individuals to participate in a meritocracy alongside everyone else, focusing on their performance in the workplace and nothing more.
Given that, it is unclear how GOP leaders in the House have decided that ENDA is bad for businesses.
The Republican Party, traditionally the party associated with capitalism and a business-friendly government, does not seem to acknowledge that close to 90 percent of the Fortune 500 support passage of ENDA. In addition to Big Business, the majority of Americans across party lines also support ENDA. According to the Washington Post, 73 percent of Americans support workplace protection for LGBT individuals; 81 percent of young adults; 60 percent of Republicans; and 80 percent of Democrats.
The unfortunate truth is, with discriminatory loopholes and gender identity on the chopping block as the bill moves forward to the Republican-dominated House, we could see a version of ENDA passed that is more akin to SPLENDA; an artificial version of the bill meant to satisfy the sweet tooth of supporters but lacking real substance.
This is one of those times where I hope I’m wrong and that a robust ENDA is passed. The time is ripe for change and the American public knows it.