Thursday, November 7, 2013

Why ENDA Is A Bad Idea

If you know me, you probably have a pretty good idea what I think of the politics of ENDA.  However, Suzanne Lucas writes today at a purely business-related rationale about why ENDA is a bad politics involved:

The Senate recently passed the Employment Non-Discrimination Act, better known as ENDA, and sent it on to the House of Representatives. This bill prohibits discrimination by employers on the basis of sexual orientation or gender identity. Whether or not the bill will even come to a vote in the House is up in the air. If it does pass it will put yet another burden on businesses.

You can argue that burdens are okay, as long as they creating a greater good in stopping discrimination against people based on their sexual orientation. There are many, many stories of people being fired or treated poorly because managers or coworkers found out that they were gay (or merely thought that they were gay). So, it makes sense to prohibit such discrimination in the workplace, right?

ENDA would create a so-called "protected class." Like it or not, that changes the way people look at members of the class. Some people--even decent people--see potential lawsuits.

And it's pretty darn easy not to hire someone: Unemployment is high and you can almost always make a perfectly legal case for why you chose someone else for the job. But if you do hire someone in a protected class, and then you need to fire or discipline or fire them, they can cry discrimination. Suddenly you are spending time, money and other resources to fight that charge, regardless of the legitimacy of the claim.

Since it's easy not to hire, but potentially dangerous to fire or discipline, ENDA may make businesses less likely to hire people based on sexual orientation. Some people argue that the Americans With Disabilities Act did just that--it encouraged people not to hire rather than risk lawsuits.

You can expect to spend between $50,000 and $250,000 just on legal bills fighting an employment lawsuit, not including an eventual payout if you lose. That's just to fight.

Proponents of the law claim that ENDA really isn't a threat to businesses because, in states that already have legal prohibitions against discrimination based on sexual orientation, few lawsuits have been filed. Rather than show that this law won't be burdensome, it shows that the law is not necessary.

You don't need to implement a law to get people to do what they are already doing. The Williams Institute reports that

Overall, we find that almost all of top 50 Fortune 500 companies and the top 50 federal government contractors (92%) state that, in general, diversity policies and generous benefit packages are good for their business.  In addition, the majority (53%) have specifically linked policies prohibiting sexual orientation and gender identity discrimination, and extending domestic partner benefits to their employees, to improving their bottom line.

Small businesses are not far behind. American Progress reports that 7 out of 10 small businesses already have policies prohibiting discrimination on the basis of sexual orientation. Why implement a new law, with added costs to taxpayers (the CBO estimates $47 million) and business owners alike, when most people already are acting in their own best interest by hiring, firing, and disciplining based on performance, not sexual orientation?

Businesses have seen that hiring people of all sexual orientations is good for business. They don't need government standing over their shoulders and second guessing decisions.

Apple made headlines the other day for advocating for passage of ENDA. But keep something in mind. What's the goal of Apple? To make money, of course. How does ENDA help them make money? By putting burdens on their smaller competitors. Apple already has a labor and employment law department. They already have lawyers on board. So compliance with this type of law is extremely easy for a big company. It is not extremely easy on the start-up that has 25 employees and has stretched its legal budget to the limit already.

There are lots of bad managers out there. A good portion of my job involves advising people on how to deal with their poor managers (and advising managers how to deal with their poor employees).  Punishing an employee for anything other than poor performance is ridiculous, yet it happens every day. You cannot legislate out bad management. You cannot wave a magic wand and make every business fair. Sometimes people are going to be treated poorly. That is unfair. But you cannot legislate that away. You can only increase the costs for compliance on business. And that doesn't help anybody, regardless of sexual orientation.

Backfire.  Everyone loses.

Now, let me throw out a simple hypothetical scenario that also illustrates the inherent problem -- and complete unworkability -- of establishing any protected classes of people, and why they actually constitute a form of discrimination themselves.

What happens if you have a disabled manager who fires a lesbian employee, and the lesbian sues the company and the manager for discrimination.  We all know that the protected class person wins when it comes to them versus anyone not similarly protected (aka white/middle class/males lose).  But how do you decide who's at fault when it comes to one protected class versus another?  If you're actually trying to be fair, the only way to resolve this conflict between protected classes is to investigate the specific situation and the variables involved with this particular manager and this particular employee, correct?  That sure makes sense, but it then requires an examination of the question of why have protected classes at all?  If you handle each specific scenario and person involved in each specific incident, then there's no reason to waste time with protected classes of people for any reason.

With two exceptions...

1. if, as in Orwell's eerily prescient Animal Farm, some protected classes are more equal than others
2. if the actual intent is to discriminate against certain other classes by omitting them from protected status

Either way, you still end up with discrimination, do you not?

And would someone please explain what rights or benefits are being denied to anyone right now that ENDA would set right?  As Lucas says above, there are already protections in place to prevent unfair firings and workplace behaviors that can be applied to all people based on nothing other than the fact they they are people.  Isn't that how it should be?  For those of you who think ENDA is a good idea, stop and think what happens when the blindness doesn't go in your favor...would you still support it if it meant you lose your job?  Shouldn't justice be blind for everyone, thus treating everyone with the same respect and dignity?

The reality is that ENDA is merely another chapter in the obnoxiously long book of liberal leftist propaganda theater - they passed it in the Senate specifically for the purpose of seeing it go down in flames in the House so that the Republicans can once again be accused of hatefulness and discrimination.  The irony is that laws like ENDA are not only bad for business outside of any political sense at all, but they actually establish state-sanctioned discrimination, the very thing they purport to eliminate.

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