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The 7 Worst Arguments In The Heritage Foundation's New Anti-ENDA Report

November 04, 2013 3:40 pm ET by Carlos Maza

A new report from the Heritage Foundation attacks the Employment Non-Discrimination Act (ENDA), mounting a perverse and fallacious defense of allowing businesses to discriminate against workers on the basis of sexual orientation and gender identity. 

In advance of the Senate's expected historic vote on ENDA, Heritage Foundation fellow and "ex-gay" therapy-advocate Ryan T. Anderson published a report titled "ENDA Threatens Fundamental Civil Liberties." The report, which is the culmination of Heritage's recent attacks on ENDA in conservative media, rehashes some of the worst conservative arguments against the law, which would merely prohibit employers from harassing or discriminating against LGBT employees. Here are the seven worst arguments he uses to attack ENDA:

ENDA Creates "Special Privileges"

A central conservative argument against ENDA is that the law would create "special" rights and privileges for LGBT people. According to Anderson:

ENDA creates special privileges based on sexual orientation and gender identity. Specifically, it would make it illegal for organizations with 15 or more employees to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity." 

In reality, ENDA would merely extend the same employment protections that already exist under Title VII of the Civil Rights Act of 1964 - for race, sex, religion, age, and disability status - to include sexual orientation and gender identity. ENDA's text explicitly prohibits special privileges for LGBT employees, including "preferential treatment or quotas."

Employment Discrimination Isn't A Big Problem

Anderson asserts that, unlike in the case of race, America does not have a history of discrimination against LGBT workers, as evidenced by that fact that any Fortune 500 companies already prohibit anti-gay employment discrimination:

America has no similar history of society-wide legal prohibitions on employment based on sexual orientation or gender identity. While racial integration might not have been forthcoming, in the case of sexual orientation, voluntary actions and market forces have emerged that undermine the clamor for federal action. As noted, 88 percent of Fortune 500 companies prohibit employment decisions based on sexual orientation. 

As Think Progress's Zack Beauchamp noted, America actually has a long, sordid history of discrimination against LGBT workers, including the campaign to hunt down and fire gay federal employees during the 1950s and '60s. That legacy of discrimination is nowhere close to over - "widespread discrimination" against LGBT workers continues today.

Being LGBT Is A "Behavior"

The central difference between ENDA and other non-discrimination laws, Anderson claims, is that sexual orientation and gender identity - unlike sex and disability status - are defined primarily by behaviors, which employees can choose not to participate in:

What is more, while race is usually readily apparent, the groups seeking special status in ENDA are not 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 to the federal government. 

Anderson's argument is flawed for two reasons. First, LGBT employees are frequently discriminated against because of their perceived sexual orientation and gender identity, not because of their behavior at work. Without ENDA, even a heterosexual, cisgender employee could be discriminated against if he or she acted in a way that was perceived to be gay or inconsistent with their biological sex.

Second, Anderson's argument basically amounts to, "if you're afraid of being discriminated against, stay in the closet." Unsurprisingly, employees who are forced to hide their sexual orientation and gender identity out of fear of discrimination experience lower productivity and morale.

Finally, Anderson is just wrong when he claims that other protected classes aren't defined by their "behaviors." Breast feeding at work - a "behavior" - is protected under Title VII's prohibition on sex discrimination. Wearing a religious symbol to the office - also a "behavior" - is protected under Title VII's prohibition on religious discrimination. In both of these cases, it's understood that the behavior is an important component of the kinds of "objective characteristics" Anderson references.

Being LGBT Is A Choice

Anderson expands on his "behavior" distinction by suggesting that sexual orientation and gender identity are ill-defined choices and thus don't deserve to be elevated to the level of other protected categories:

Paul McHugh, MD, University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine, and Gerard V. Bradley, Professor of Law at the University of Notre Dame, explain:

[S]ocial science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.

McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition.

Again, Anderson's argument reeks of bad science. McHugh, for example, is a notoriously transphobic activist whose conclusions contradict the findings of major medical associations, which have found that both sexual orientation and gender identity are largely fixed and immutable.

Moreover, other protected classes, like race and disability status, are equally ill-defined. At what point is someone's skin dark enough to be considered black? How light does a Latino's skin have to be before he or she just becomes white? Physical disabilities range drastically in terms of severity, symptoms, and duration. When is a disability severe enough to be covered under Title VII?  In all of these cases, the absence of a strictly-defined category isn't reason enough to allow for employment discrimination.

ENDA Will Cause A Wave Of Fake Lawsuits

Anderson warns that ENDA would be "ripe for abuse" because fired employees would falsely claim they were punished for being LGBT:

Because sexual orientation and gender identity are subjective concepts that may change over time, a law invoking them to define a protected class would be especially ripe for abuse. For instance, employees who are dismissed for legitimate reasons might afterward claim that their employer fired them because its perceptions of their sexual orientation or gender identity changed.

This horror story wasn't borne out by the evidence of non-discrimination laws. A comprehensive study by the Williams Institute of localities that had enacted their own versions of ENDA found no evidence of a spike in litigation as a result of LGBT protections. As Dr. Jillian T. Weiss, professor of law and society at Ramapo College of New Jersey has noted, an ENDA-like law in California didn't triggera wave of new employment discrimination lawsuits.

Anderson's argument is also unsettlingly broad; any and all non-discrimination measures run the risk of inviting some employees to make false allegations of discrimination. Would he really feel comfortable making the same argument about protections for race and sex discrimination?

ENDA Would Punish People With Religious Convictions

Anderson claims that the passage of ENDA would undermine citizen's ability to speak freely about their religious views on marriage and sexuality:

Clearly, ENDA would create enormous legal risks for businesses that allowed their employees to express traditional religious teachings on sexuality. Anti-discrimination law ought not to silence religious believers.

In truth, it is hard to square ENDA's basic purpose with any robust protection of citizens' rights to speak freely about their religious or moral convictions about marriage and sexuality. Indeed, Americans are paying the price when their state or local governments have passed sexual orientation and gender identity statutes.

Anderson's argument relies on a broad conflation of religious belief and religious harassment. As Dr. Weiss notes, there's a pretty major and significant difference between the two: 

It is true that employers will be required to take action against harassers, regardless of whether their motivation is religious or not. There is, however, a clear line between belief and harassment. No one is going to take away your Bible. But you can't hit me over the head with it, either. 

ENDA cannot tell anyone what to believe, nor can employers. At the same time, gay employees have the right to live free from harassment on the job. In fact, it is now the law and has been since 1964 that people of all religions and walks of life have the right to be free from harassment on the job based on religion. 

Co-workers who want to march up to you and say "You are going to hell to burn in the eternal lake of fire!" are not be free to do so. Will this prohibit a private employer from having a Christmas tree, because some Christian sects condemn homosexuals? No. Will it prohibit a co-worker from saying "I'm a Christian."? No. But it will prohibit an attack on someone whether that attack is religiously motivated or not. 

For years, employees with wildly divergent religious beliefs have been able to work together without inciting major violations of Title VII's religious discrimination provisions. It isn't discrimination to have sincere, deeply-held disagreements about morality and sexuality. It is harassment to personally attack a coworker because he or she is LGBT, even if that attack is motivated by religious conviction. 

ENDA Would Be Used To Protect Polygamists

Anderson's final warning about ENDA is that the measure's inclusion of the term "sexual orientation" might be interpreted to include "a host of inclinations and behaviors," including polyamory:

As for ENDA's invocation of "sexual orientation," it is not clear how this category could be prevented from expanding to cover a host of inclinations and behaviors. McHugh and Bradley explain: 

Despite the effort of ENDA's legislative drafters to confine "sexual orientation" to homosexuality, heterosexuality, and bisexuality, the logic of self-defined "orientation" is not so easily cabined.... Even polyamory, "a preference for having multiple romantic relationships simultaneously," has been defended as "a type of sexual orientation for purposes of anti-discrimination law" in a 2011 law review article. 

There is no limiting principle for what will be classified as a sexual orientation or gender identity in the future.

But the scope of ENDA's "sexual orientation" terminology is clearly defined in the bill:

(10) Sexual orientation.--The term ``sexual orientation''  means homosexuality, heterosexuality, or bisexuality. 

For ENDA to cover something like polyamory, there would have to be an amendment to the law explicitly including that type of behavior under the sexual orientation category. That seems unlikely, even if Anderson was able to find a single two-year-old law review article that seemed to confirm his suspicions.

The Heritage Foundation's report is based more on scare tactics than a serious analysis of ENDA's provisions. At best, the report wildly misreads key portions of the law; at worst, it's an attack on the very idea of non-discrimination policies, lobbing attacks that could be easily used to justify repealing the bulk of Title VII of the Civil Rights Act. 

Previously:

Debunking Conservative Lies About The Employment Non-Discrimination Act (ENDA)

Heritage's Anderson: If You Don't Want To Get Fired For Being LGBT, Hope That Your Employer Isn't A Bigot

Myths And Facts About The Employment Non-Discrimination Act (ENDA)