Employment Non-Discrimination Act

The proposed law imposing liability on private employers who discriminate on the basis of employees’ sexual orientation has cleared the House for the first time. My own views haven’t changed since I wrote on the proposal in Reason a decade ago in the course of a review of Andrew Sullivan (who has switched sides since […]

The proposed law imposing liability on private employers who discriminate on the basis of employees’ sexual orientation has cleared the House for the first time. My own views haven’t changed since I wrote on the proposal in Reason a decade ago in the course of a review of Andrew Sullivan (who has switched sides since then and now favors the bill). Both sides of the debate get fully aired in the comments to this Dale Carpenter post and by various contributors to the Independent Gay Forum.

More: Possibly related, the case of Aaron Charney versus Sullivan & Cromwell has settled: David Lat, “A Big Pay Day for Big Law Gay?”, New York Observer, Nov. 6.

5 Comments

  • Homosexuals have lower unemployment rates. Their salaries are a full standard deviation above the mean, according to the Census. This remedy is one to no harm.

    It is a lawyer employment law. Now, when an employer sees a homosexual applying for a job, he will no longer see an above average employee. He will see a lawsuit on wheels, and move on.

  • It seems to me that this would be a perfect place to apply the “Don’t Ask, Don’t Tell” policy that was dumped on the US military in the 1990’s. How in the heck is an employer supposed to know the sexual orientation of an applicant? It isn’t like there is a sign hanging around someone’s neck saying “I’m gay!”. Oh wait, these days there might just be.

  • I oppose ENDA on several grounds, but then, I oppose the federal government (or any government) telling private business who they can or can’t hire to begin with (pretty obvios Constitutional violations, IMO), so I oppose most of the laws resulting from the Civil Rights era.

    Racism is certainly repugnant, just as many people think of those who are bigoted against homosexuals (is there a good word for that? “sexist” is already taken), and incidentally, just as many people of homosexuality. But, in all of those cases, th government is a bad solution.

  • Look at ENDA from an economic point of view.

    ENDA would not make gays or lesbians any more productive
    for employers.

    However, ENDA would make gays and lesbians more costly
    for employers. Under ENDA any disgruntled gay or lesbian
    employee could sue for sexual-orientation- discrimination,
    and (if even one fellow employee ever listened to talk radio
    during his lunch break) make, e.g., a hostile-
    environment claim that would withstand a motion to dismiss.
    The minute plaintiff commenced discovery the employer would
    suffer much economic harm. He would often choose to settle
    to save the costs of discovery and trial regardless of the
    merits.

    (Of course only some gays or lesbians would ever sue under
    ENDA, but employers could not predict in advance which of
    them would do so. Employers would impute a statistical
    share of ENDA lawsuit costs to each ENDA-protectee. That
    is, suppose an normal employee costs $100K/year in wages,
    benefits, payroll taxes, and general risks to produce
    $120K/year of economic output. Suppose further than just
    1 out of 1000 ENDA-protected employees files a lawsuit every
    year, but each lawsuit costs $1M. That means the average
    ENDA-protected employee costs $101K to produce the same
    output as a normal employee costing $100K. For each ENDA-
    protected employee, the employer’s surplus would drop from
    $20K to $19K, a five percent decrease at the bottom
    line! Though these numbers are purely for illustration,
    this really is the way employers reason. Indeed, many
    managers will reason well past that point, even if the
    numbers are less dire than in our example: many managers
    will think “a single ENDA lawsuit might cost the firm $X,
    but if I were named it would cost me personally my next
    promotion or even my job. So while the CEO requires me
    to hire a quota of ENDA-protectees (to avert EEOC action
    which might cost many millions), I am sure as heck not
    going to hire any extra ones.”)

    Normally employers avoid hiring people who are more costly
    without being more productive. But under ENDA, employers
    would be liable for defensive, purely economic
    discrimination against gays and lesbians just as if they
    were actually sexual-orientation bigots.

    So here’s what would happen: the EEOC would establish
    ENDA enforcement criteria, including a statistical test
    to establish prima-facie cases of discrimination.
    Employers would hire a quota of ENDA-protectees to meet
    the statistical test (to avert EEOC action and strengthen
    their defense against private actions). Employers would
    avoid hiring above that quota, because ENDA-
    protectees are less valuable (net of equal productivity
    with greater cost) than similarly-qualified candidates
    without ENDA privileges.

    That is how ENDA can bestow privileges yet harm protected-
    persons’ job prospects. First GLB(T) applicant at a
    30-employee firm? Oh frabjous day! We’ve been praying
    you would show up. You’re hired! (Ed, fax the EEOC and
    tell them we’ve finally achieved statistical compliance!)
    Second GLB(T) applicant? Oh, well, several people applied
    for this post. The interviewers didn’t feel you were a
    perfect fit for our team. Why don’t you try the firm
    down the street…

    (Note that people who might be covered by ENDA couldn’t
    avoid ENDA’s negative effect on their employability.
    ENDA won’t permit them to waive their right to sue, and
    individuals cannot waive EEOC enforcement powers.

  • One more reason to move a company and jobs overseas, where such laws do not exist. Way to go.

    So if the ax comes to a department, who will lose their jobs first?

    maybe if sexual preferences were kept private there would be no discrimination, no?