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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, October 12, 2009

Arguments Against ENDA: Inquiries Into Employee Sexual Orientation

Some are concerned that ENDA will require employers to begin inquiring into their employee's sexual orientation and gender identity, in order to avoid lawsuits alleging discrimination if there are few LGBT employees in the workplace. This concern is misplaced for several reasons. However, it has led some legislators to express concern about ENDA, including Senator Richard Lugar of Indiana. Senator Lugar seemed supportive of ENDA in the past, but recently released a letter expressing his reservations. One of his concerns was that ENDA will lead employers to probe their workers.

ENDA Will Not Lead Employers To Probe Their Employees

Senator Lugar's letter said: "I also am concerned that ENDA would induce employers to probe the sexual orientation of their employees as a means of preparing for or preventing potential lawsuits or EEOC actions. Such a development would not be positive for employee privacy or workplace dynamics, and it could have unpredictable consequences for the fairness of hiring decisions. I understand that ENDA does not require such inquiries; however, many employers will see some degree of information about the sexual orientation of their employees as a vital element in dealing with potential litigation."

This argument is mistaken on two levels.

Most significantly, Senator Lugar's argument is that ENDA will cause employers to begin inquiring into people's sexual orientation and gender identity because they're afraid of being sued. The concern here appears to be that workers' right to privacy would be infringed by concerned employers, leading to more discrimination, rather than less. This argument assumes that employees' right to privacy of sexual orientation and gender identity has been protected in the past. In fact, as demonstrated by testimony at the recent Congressional hearing on September 23, 2009, and that of prior Congressional hearings in years past, there is already a great deal of discrimination against LGBT workers. The idea that workers are somehow now protected from discovery or suspicion of their sexual orientation or gender identity is a false notion. This argument seems to suggest that discriminatory employers will say: "We liked you before, LGBT employees, and never harassed or discriminated against you, but now that you're protected by ENDA, we're coming after you."

This argument makes the claim that the anti-discrimination law is the cause of discrimination. That is not a claim backed up by any evidence.

Secondly, the idea that employers should collect statistics on their employees' sexual orientation is rejected by ENDA itself. The text of the bill specifically prohibits the collection of statistics or the imposition of a "gay quota." (Sections 4(f) and 9) The bill also prohibits "disparate impact" lawsuits claiming that there are not enough gays in the workplace. (Section 4(g))

Senator Lugar's suggestion that ENDA will cause employers to start tracking their employee's sexual orientation and gender identity ignores what ENDA specifically says.

Thus, the argument that ENDA will hurt LGBT employees by imposing reporting requirements is mistaken.


genevieve said...

I think that their argument is bogus. By their own discrimination they create more problems than its worth. This blatant discrimination would affect ALL their workers.

Christina said...

I work for a company that has non-discrimination policies and guidelines that cover not only religion, race, etc but also sexual orientation and transgenderism. Furthermore, the company includes in the medical insurance policy coverage for transgender treatment including surgery. That said, discrimination can still be a problem.

Here are two examples. During a layoff, how does one know that managers are not selecting more LGBT people to terminate than non-LBGT?

Or, for example, if a manager doesn't provide overt statements or actions that he or she doesn't "like" a TG worker, and that worker feels so unwelcome that he or she quits, how do you prove discrimination? How does management correct this problem if they can't measure it?

If the company doesn't count the number of L, G, B, and T employees it has versus non-LBGT, then the diversity officials can't see that the layoff or the retention rate for LGBT is much worse than for non-LBGT.

Starting in 2010, the company is going to provide an LBGT check-box for people who wish to self-identify to do that. It might help since if a job reduction of 10% shows that 30% of the self-identified LBGT employees were targeted, then corrective action can be taken.

In that way, there is some merit to what the senator said.