House of Representatives Speaker John Boehner on Monday opposed a bill to ban workplace discrimination based on sexual orientation and gender identity, dimming the chances of the White House-backed measure becoming law.
“The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” Boehner’s spokesman Michael Steel said in a statement.
Your thoughts on this topic are welcome in the comments. Here are mine. I agree that ENDA should be rejected, for the following reasons.
CA has had an anti-gay discrimination law for decades, which I supported, only then to see it mis-used. Without getting into details, I saw one friend use it to shake down employer after employer every couple of years, as each new one found out that he wasn’t a very good employee (regardless of his being gay). I also saw a good person suffer an anti-gay discrimination lawsuit whose allegations were wholly, boldly invented. (The suit failed in the end, but the lengthy process itself was a form of harm.)
Perhaps there are real cases of discrimination against good employees that these laws help to redress; but I’ve seen more that these laws empower lawyers – and grifters, liars and con artists. The broader point would be that these laws violate rights to property and to free association.
Just as an employee should be free to quit and move on to any employer who may want them, an employer should be free to fire any employee who works for them. The employer-employee relationship should be a private relationship between consenting adults; a relationship that either side can end at will. Laws which burden/restrict that are laws which violate people’s rights, opening the door to injustices of the kind I’ve outlined (and more).
Now, the reasons for opposing anti-discrimination laws (which might better be called “lawyer empowerment laws”) that I’ve just laid out, are not gay-specific. They work against these laws in general. Catching onto that, some people will respond: OK, but we do have these laws covering race, gender, religion, national origin, age, etc…why not add sexual orientation? As a longtime believer in equality-before-the-law for gays and straights, I don’t think that’s a terrible response. I am sympathetic to it.
But I keep coming back to the fact that two wrongs don’t make a right. That we have these laws to begin with, is a wrong; and we won’t escape the wrongness by broadening these laws to cover more and more categories. We should be looking, if anything, to reduce the categories.
RELATED (from Dan): I had been planning on post on ENDA largely along the lines of the arguments Walter Olson makes here. Just read the whole thing.
(And from Jeff): The heart of Olson’s argument is his last paragraph:
…At what point do we say no to future demands that protected-group status be accorded to employees based on political and controversial systems of belief, physical appearance (the “looksism” issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few…? If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.
Great point. ENDA is, in the end, just the next small step in the Left’s incremental strategy to make a society where no economic actions are private or unfettered; the politicians, judges, lawyers and bureaucrats rule all.