The argument has nonetheless caused some concern among legislators. Senator Richard Lugar of Indiana has released a letter in which he raises this issue as a potential point of contention. A letter from Senator Lugar argues that ENDA would unduly increase litigation.
Point I: ENDA Would Not Unduly Increase Litigation
Senator Lugar says: "However, I remain concerned that ENDA would unduly increase litigation, create momentum for additional contentious protected employee classifications, and adversely affect the enormous number of small businesses not covered by the bill's 15-employee exemption."
The available evidence suggests that ENDA is not likely to unduly increase litigation.
In 2001, the Senate Committee on Health, Education, Labor and Pensions issued a report on ENDA. It noted that "the EEOC expects that implementing S. 1284 would increase its annual caseload (currently about 80,000 cases) by 5-to-7 percent." That's not an undue increase in litigation.
Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows also shows that there is not likely to be an undue increase in litigation.
California had only 821 sexual orientation discrimination lawsuits last year for a population of 37 million. What does this mean for the idea that ENDA will cause a lot of litigation?
- This means only 0.1% of the 724,000 business firms in California were sued based on sexual orientation.
- If the same numbers hold true for the 8% of US businesses with between 20 and 99 employees, then there will be approximately 500 lawsuits for the half-million businesses under 100 employees.
- The California numbers show that sexual orientation lawsuits accounted for only 4% of the 18,785 discrimination cases in California that year.
Thus, Senator Lugar's concern about small businesses with over 15 employees is misplaced. The evidence shows a trickle, not a flood. There is no reason to expect an undue amount of litigation from ENDA.