Heritage's Anderson: If You Don't Want To Get Fired For Being LGBT, Hope That Your Employer Isn't A Bigot
October 31, 2013 12:53 pm ET by Luke Brinker
Heritage Foundation fellow and syndicated columnist Ryan T. Anderson offered two solutions for LGBT workers fearful that they'll be fired based on their sexual orientation or gender identity: choose to work for non-bigoted companies, or avoid the problem altogether by staying closeted .
In an October 31 column for National Review Online, Anderson attacked the Employment Non-Discrimination Act (ENDA), which prohibits employment discrimination based on sexual orientation or gender identity, as an assault on civil liberties, the free market, and "traditional values." While the profoundly anti-LGBT Anderson spent much of the column assailing ENDA on socially conservative grounds, he also suggested that ENDA would be superfluous, as "market forces" are already protecting against employment discrimination (emphasis added):
Some defenders of the bill reply by saying that sexual orientation and gender identity are just like race, and thus deserve similar federal protections. But this analogy is false. Jim Crow laws represented pervasive, onerous, and legally enshrined obstacles to employment based on race. America has no similar history of society-wide legal prohibitions on employment based on sexual orientation or gender identity. Racial integration might not have been forthcoming in those days; in the case of sexual orientation, however, voluntary actions and market forces have emerged that undermine the clamor for federal action. For example, 88 percent of Fortune 500 companies prohibit employment decisions based on sexual orientation.
Anderson offered no words of comfort for workers whose employers aren't as kind. As UCLA's Williams Institute noted in 2011, LGBT employees continue to experience "widespread discrimination," with 37.7 percent of LGB employees who are "out" at work reporting some form of discrimination at work and 38.2 percent stating that they'd been harassed because of their sexual orientation.
For transgender workers, the figures are even worse, according to data compiled by the Center for American Progress. Nine in 10 have experienced harassment or mistreatment, while 44 percent have been denied a job, and 23 percent failed to earn a promotion based on their gender identity. Meanwhile, 26 percent report that they've been fired for being transgender.
While the failure of "free market" solutions to employment discrimination is obvious, it's also clear that Anderson doesn't actually care about openly LGBT people who don't want employers to discriminate against them because of who they are. He goes on to suggest that such workers can simply exhibit different "behavior" - i.e., remain closeted to their employers or potential employers to avoid discrimination:
What's more, while race is usually readily apparent, the groups seeking special status in ENDA aren't defined by objective characteristics. Sexual orientation and gender identity are commonly understood to be subjective, self-disclosed, and self-defined. And unlike race, sexual orientation and gender identity are usually understood to include behaviors. An employer's decisions reasonably taking into account the behavior of employees are core personnel decisions, best left to businesses themselves — not the federal government.
Perhaps Anderson tries to distinguish between race-based discrimination and that based on sexual orientation or gender identity because he realizes how problematic contemporary readers would find his arguments if applied to racial minorities instead of LGBT people. Of course, many opponents of the Civil Rights Act of 1964 also argued that remedies for racial discrimination were best left to private actors. And given that sexual orientation isn't a choice and medical experts agree that one's gender identity doesn't always match one's assigned sex at birth, Anderson's tortured attempt at distinguishing between good and bad discrimination doesn't withstand scrutiny.