Senate Poised to Pass Employment Non-Discrimination Act

Yesterday, the Senate voted 61-to-30 to invoke cloture on the Employment Non-Discrimination Act, which would ban workplace bias based on sexual orientation or transgender status, making it almost certain that the Senate will pass the bill this week. It is uncertain whether it will pass the House, since House Speaker John Boehner has expressed opposition to the bill, which may not come to a vote before the full House.

Previously, I have argued that ENDA’s costs outweigh its potential benefits in the private sector, in commentaries you can find here, here, and here. The Heritage Foundation raises a series of objections to ENDA, some of which have more merit than others, at this link.

The ENDA bill is more costly to private employers than business realizes, and will impose costs even on some employers that sensibly hire and fire based on merit, not based on sexual orientation or other irrelevant factors.

As I have explained in the above-linked commentaries, (1) its superficially evenhanded attorneys fees provisions will be interpreted in a pro-plaintiff, heads-I-win, tails-you-lose way by the courts due to the Christiansburg Garment decision and its progeny construing the same language in other statutes (meaning that workers will recover attorneys fees, and damages, when they win, but companies will get nothing in attorney fees when they win and prove themselves innocent of discrimination); and (2) the courts will read into its terms-or-conditions language costly causes of action for “harassment” for comments by co-workers, potentially including comments on religious and political issues related to sexual orientation (like same-sex marriage), that don’t reflect the employer’s own views or any homophobia on the part of the employer (in some cases, for comments that an employer never even learned about prior to a lawsuit), thus encroaching on free speech in the workplace. For additional potential problems with the bill, see these links.

For other perspectives on ENDA, see Walter Olson, Cato Institute; Stephen Miller; Stephen Richer, Purple Elephant; Daily Caller; Libertarian Jew; Andrew Sullivan (in support of the bill); Peter Weber, The Week; Scott Shackford, Reason; Paul Mirengoff, PowerLine; Doug Mataconis, Outside the Beltway.