A
few months ago a U.S. Senate committee passed the Employment
Non-Discrimination Act, or ENDA. Thursday the Senate voted 64-32 to
approve ENDA. The National Gay and Lesbian Task Force, a LGBT
grassroots organization and think tank, monitors the progress on
range of LGBT issues one of which is the ENDA. On its website the
group keeps a running tally of Senators who are “evolving” their
viewpoint in favor of EDNA legislation. The bill would ban
discrimination based on sexual orientation or gender identity —
protections that are, as yet, not explicitly guaranteed under federal
statutes.
It seems as if an American social paradigm shift is accelerating
when it comes to issues concerning civil rights and equality. You
might think that it's just an academic exercise conducted for and by
legal scholars and lawmakers. If that's true, then as evidence you
would surely invoke both The Civil Rights Act of 1964 and the
Americans with Disabilities Act of 1990 as landmark pieces of
legislation guaranteeing equal treatment as an American citizen under
the constitution. The former ensures equal civic rights to all
Americans which was spearheaded by fundamental civil rights being
granted to African-Americans in the America. The latter endows equal
opportunities and anti-discrimination measures to Americans with
physical and mental handicaps.
If you thought the premise of anti-discrimination was merely an
enforcement question of laws and statutes already on the books, then
you would be dead wrong. The inherent nature of intricate legalese
prohibits generalizations and “blanket” uniform coverage under
the law.
The recent advancements of same sex marriages as well as the
dismantling of the Defense of Marriage Act has sent the centrists,
leftists and right wingers down a rabbit hole that appears to be
bottomless. One of the newest and simultaneously longest running
bills which would protect equality in the workplace is gaining
notoriety and traction in all three camps. The bill in question is
the Employment Nondiscrimination Act: ENDA for short.
What exactly is ENDA; why has it taken almost 30 years to pass and
what is its shared pedigree with other landmark civil rights bills?
Here is a guided tour through the rabbit hole of civil rights
legislation as it pertains to ENDA.
Assuming the momentum continues and it passes
Congress, the bill would ban discrimination based on sexual
orientation or gender identity. An issue, as yet, not explicitly
guaranteed under federal statutes.
Of course, there are numerous labor laws which have been adopted
to ensure protection of civil rights which are already on the books.
However, Stetson Law School assistant professor, Jason Bent, says
ENDA addresses issues other laws don’t.
“...The Civil Rights Act of 1964 only covered certain
categorical things. Right, it covers race, national origin, and
religion and so other things. But that sort of set the tone. It now,
if you want to extend protections to another class; some other
defined by some other characteristic. If you want to protect them
from private discrimination then you need a separate piece of
legislation.”
This appears to say that the hastening zeitgeist of total equality
is only impeded by the verbiage of the particular Acts and statutes.
Specifically, the LGBT community would receive implicit and explicit
protection in the workplace as it pertains to sexual orientation and
gender identity. How you express those ideals in a working
environment is the crux of the debate and the centerpiece of the
legislation.
Alfred Kinsey, the full-time biologist and part-time sexologist,
in his seminal research and books on the sexuality of males and
females revealed that pigeonholing sexuality is a slippery slope. His
bell curve scale detailed the false tenacity of orthodox sex role
definitions. The scale he developed had completely homosexual on one
end with its polar opposite, completely heterosexual, on the other
end. The conclusion he drew is that a small minority of people fall
into either extreme. In other words, the majority of us are all a
combination of both ends. The scale doesn't address bisexuality or
transsexuality as such but the gist of the argument is clear.
This brings up an interesting conundrum. What if sexual
discrimination in the workplace isn’t
limited to the LGBT community? Felipe Souza-Rodriquez is the
co-director of Get Equal, a grassroots advocacy group which provides
LGBT communities a forum in which to tell, receive feedback and
discuss their stories about job discrimination. He said, as the law
stands now, even heterosexuals could fall victim to discrimination on
the job based on “perceived” sexual orientation or gender
identity.
”Discrimination based on perceived sexual orientation is where
people...who are straight, but people think they are gay, bisexual or
lesbian and then they often get fired. So, I mean we're talking about
the full spectrum of everyone. Even straight people who are
discriminated the quote/unquote look gay.”
The current language in the bill allows for some dubious escape
clauses and loopholes. Occasionally employers make assumptions
regarding workers’ sexual orientation. As stated earlier, this is
what some call perceived orientation. Daniel Tilley, a staff
attorney for the ACLU of Florida says this concept plainly highlights
the shortcomings of the bill.
”...they give a wide berth for employers to discriminate against
employees based on sexual orientation or gender identity if they're
not just a religious institution but religiously affiliated. So if
you're a religiously affiliated hospital you could fire a gay
groundskeeper or a trans(exual) doctor. And this is troubling for a
number of reasons. One, those obviously have no...those positions
have no relation whatsoever to a particular religion. But secondly,
those exemptions don't exist in other civil rights laws.”
The transgender community has been brought to the forefront,
principally, because of ENDA’s use of the term “gender identity.”
Staff attorney of the New York City based Transgender Legal and
Education Fund, Noah Lewis, says the uncanny high rate of transgender
job discrimination will be addressed if ENDA is enacted.
”transgender people face extraordinarily high rates of
discrimination. Nine out of ten transgender people report
experiencing harassment or discrimination on the job. Nearly half
have been fired or denied promotion or not hired because of being
transgender. One out of four transgender individuals have lost a job
simply because they're transgender. So this is just a question of
basic fairness. No one should be fired simply for being gay or
transgender.”
Before the St Pete Pride event this year, Steve Kornell, a St.
Pete city council member, commented on a remark by Republican Florida
Senator Marco Rubio’s. Rubio had said he would not support ENDA
because it would give preferential treatment to a certain group of
people. Kornell rejects that statement out of hand. He says
minorities can’t be given their rights.
”Gay people and the people covered under the 1964 Civil Rights
Act, especially African-Americans, and other minorities don't have to
be given their rights. They're entitled their rights by the (US)
constitution; which says that all men are created equal. And to me
that definition should include all people. And does include all
people to me. And certain groups have fought to deny people their
rights. So that's all people are asking for. They're not asking for
preferential treatment. That's laughable. That's just not true.”
There are numerous
other civil rights issues being debated in the public forum, like
many of the amendments laid out in the US Bill of Rights. Unlawful
search and seizure, freedom of the press and free speech, right to
bear arms as well as abortion, euthanasia and dominion over ones
body, along with gender identity and sexual orientation are all
portions of a redistricting of America's psychosocial map. This
psychosocial map is slowly being conjoined through a zeitgeist of
inclusion and equality for all Americans. In this way an otherwise
worrisome journey down the rabbit hole feels more like a pleasant
stroll down an unfamiliar country lane.
Shortly after the
Senate voted to approve ENDA, president Obama released a statement
commending the Senate and appealed to the House of Representatives to
do the same.
“
I urge the
House Republican leadership to bring this bill to the floor for a
vote and send it to my desk so I can sign it into law. On that day,
our nation will take another historic step toward fulfilling the
founding ideals that define us as Americans.”