ENDA, Small Business and Government Interference

Today the Senate passed a bill that may harm religious liberty and job creation in America.  By a vote of 64-32, lawmakers agreed to the Employment Non-Discrimination Act (ENDA).  This legislation is the wrong approach to ending discrimination in the workplace for many reasons, not the least of which is the harm that may befall small businesses and job creation.

The purported purpose of the bill is “outlawing workplace discrimination” against lesbian, gay, bisexual, and transgender individuals.  But as Heritage explains, ENDA “would create special privileges that are enforceable against private actors,” and these privileges would be based on “subjective and unverifiable identities.”  Consequently, the legislation could disenable employers from running their organizations in keeping with their moral or religious values.

ENDA “would impose liability on employers for alleged ‘discrimination’ based not on objective employee traits, but on subjective and unverifiable identities.”  It would increase the federal government’s interference in labor markets, thereby potentially discouraging job creation.

Some have suggested that lawsuits against small business owners are not a real concern.  For example, the Wall Street Journal states (sub. req’d) that concerns about “frivolous litigation” against employers and organizations may be “unfounded.”

They explain that according to a report released in July by the U.S. Government Accountability Office, which looked at complaints filed in the District of Columbia and the 21 states with laws outlawing discrimination against lesbian, gay, and bisexual workers, there is a relatively small number of complaints filed based on “gender identity” or “sexual orientation.”  For example, in Wisconsin, only 2 percent of employment discrimination complaints were brought on the basis of sexual orientation in 2012.

But where is the fairness in belittling the concerns of employers who have either practical or religious concerns that don’t line up with those of the federal government?

Perhaps the 64 senators who voted in favor of ENDA do not have to concern themselves with transgendered individuals who are biological men using a women’s restroom, but some employers may.

This is a real concern.  For example, the Blaze reported in May of 2012 that Arkansas University had been sued over its refusal to allow an almost 40 year old, still biologically male student to use women’s restrooms.  The Heritage Foundation notes:

[A]n 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 do so raises a host of concerns about privacy rights. 

Employers have been sued by transgendered individuals for being prevented from using the restroom of their choice, based on their perception of themselves as being trapped in a body of the wrong sex.  It is possible that large corporations, many of which already have self-instituted policies in place to prevent alleged discrimination against transgendered individuals, can afford to deal with frivolous lawsuits, but small business owners may not.

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