Yesterday Rep. George Miller (D-Calif.), held a hearing of the House Education & Labor Committee, which he chairs to consider the Employment Non-Discrimination Act (ENDA), a bill which would bar private companies from discriminating against gay men and lesbians. And while some may say this is just an issue of workplace fairness, the real issue here is whether or not we need another law limiting the freedom of private employers.
Of course, it’s wrong to discriminate against an employee just because he (or she) is gay, but it isn’t the government’s business to prevent business owners from doing wrong.
And anyway, this bill is unnecessary.
The latest edition of State of the Workplace, a publication of the Human Rights Campaign (HRC), shows what all past editions have shown: an ever-increasing number of corporations have adopted non-discrimination clauses protecting gay and lesbian employees (and offering domestic partnership benefits as well). In 2008, 423 companies in the Fortune 500 had adopted such non-discrimination laws whereas 360 had done so five years previously. ENDA, in short, is a solution in search of a problem.
Should this legislation pass, how would a liberal Administration enforce it, would the Holder Justice Department bring “disparate impact” lawsuits against corporations that don’t have the proper amount of homosexuals in their workforce. Would a lower percentage of gay people in the workforce (than in the surrounding jurisdiction) be evidence of discrimination as some liberals believe a lower proportion of minorities (than in the population at large) is prima facie evidence of discrimination? (See e.g., Sonia Sotomayor and the Ricci decision).
And how would an employer determine how many gays are in his employ (and a judge in his jurisdiction)? Would people be required to identify their sexuality when they take a job?
Now, the evidence from states with non-discrimination laws suggest that this would not happen, but most states elect their attorneys general, so they would be loath to bring such a lawsuit.
The current Attorney General, however, favors such suits when it comes to racial discrimination. Who knows how he (or someone of his ideological ilk) might proceed on sexual orientation?
To avoid such problems, the solution is simple: freedom. Eliminate laws which discriminate against gay people and don’t enact new ones in order to achieve “full equality” (whatever that is).
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