An Endgame for ENDA?

This week could prove to be a historic one for civil rights. According to reports, the Senate is likely to vote later this week on the Employment Nondiscrimination Act [pdf]. ENDA, as it’s more commonly known, would amend Title VII to include protections for sexual orientation and gender identity. Early reports indicate that it could have enough support to pass in the Senate (even my home-state Republican Senator, Rob Portman, has indicated he may vote for it). Whether it can pass the Republican-controlled House and make it to President Obama’s desk for signature is another story. Trying to do his part, President Obama has penned an article for the Huffington Post urging both houses of Congress “to vote yes on ENDA.”

Those who have read my earlier thoughts on ENDA know that I’ve long preached that I believe it’s shameful that in 2013 there still exist minorities against who the government says it’s legal to discriminate. Critics of ENDA argue that it’s not necessary to impose legislative burdens on employers because most already prohibit this form of discrimination via their own internal policies, or because state and local jurisdictions that have passed similar laws do not report an increase of claims.

To these critics, I say that you miss the point. Anti-discrimination laws that exclude sexual orientation and gender identity suggest that these forms of discrimination are permissible. Additionally, while I look forward to embracing the day that all forms of discrimination cease to exist, I would not argue for the abolition of all anti-discrimination laws if that were to occur. Instead, I would argue that the laws are working, and are needed as a deterrent to maintain the status quo.

Perhaps Apple CEO Time Cook put it best in a Wall Street Journal Op-Ed urging for ENDA’s passage:

So long as the law remains silent on the workplace rights of gay and lesbian Americans, we as a nation are effectively consenting to discrimination against them.

As an advocate for employer rights, it’s rare that I’m in favor of increased regulations on businesses. Yet, this legislation is a no-brainier. As we approach the 50th anniversary of Title VII, now is the time to tell our workers that we, as a nation, support equality among all, including the LGBT community. Otherwise, the very principle upon which our country was founded (that all people are created equal) is nothing but a sham.

I will update the blog after the Senate holds its vote on ENDA.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. You can also follow Hyman on Twitter at @jonhyman.