The employment non-discrimination act (ENDA) is a civil rights legislation that prohibits employment discrimination on the basis of sexual orientation(113th Congress 2013–2015, Nov 12, 2013). It makes it against the law to dismiss, refuse to employ, or refuse to endorse and promote employees because of their sexual orientation or gender orientation(Barusch, 2008, p. 336).ENDA establishes uniform protections for lesbian, gay, bisexual and transgender workers throughout the country, making it evident that employees cannot be mistreated because of who they are or who they love (PFAW, 2014).
ENDA would in effect, include sexual orientation in the group of characteristics that Title VII already makes off-limits as the basis of the terms and conditions of employment. Explicitly, ENDA would bar employers from discriminating and can be enforced by the equal opportunity commission (Brown & Ayres, 2011, p. 81). It guarantees equal opportunity in the work force for gays and lesbians in the same way the 1964 Civil Rights Act had for racial minorities but without the imposition of affirmative action required (Tadlock & Riggle, 1999, p. 149). ENDA would assume the fundamental disparate treatment framework developed under Title VII, but would leave out religious organizations, the military and businessesemploying fewer than 15 peoplefrom its coverage. It will not allow disparate impact claims, and would not require affirmative action or the provision of employee benefits to domestic partners.
The impact that legislation of this law will have on organizations are varied. The effects will both be negative and positive and will boarder on fundamental liberties, economic effects, speech, religious liberties and unintended consequences.
The most apparent benefit ofENDAto organizations is that it provides a federal law that refines the boundaries of Title VII and marks out overt protections for LGBT employees. National legislation would allow employers to adapt to definite employment guidelines and to a great extent, minimize the risk of a discrimination lawsuit that are facing many businesses (Brinker, 2013).
However, ENDA would also create serious concerns for employers seeking to manage their businesses while complying with the law(Sherk & Messmore, 2007). A fundamental premise of American labor law is the doctrine of “at-will” employment. According to that doctrine, employers have no legal compulsion to keep employing any individual worker. The employer remains at liberty to replace any worker at any particular time. However, the implementation of this law will limit this doctrine. It will result to organizations having very limited legal rights to end a contract with an employee. This may eventually result to employers being stuck with unproductive and superfluous employees. Restricting the ability of employers to lay off dissuades employers from hiring. ENDA goes against the “at-will” doctrine that has resulted in the American labor market being much stronger and competitive than European labor markets.
A flaw in this legislation is that sexual orientation and gender identity are subjective in nature, and this magnifies the problems by giving employees Carte Blanche to threaten litigation against their employer in retort to adverse employment action. Additionally, under the Supreme Court’s interpretation of Title VII, employers must recompense the plaintiff’s attorney’s fees if they lose an anti-discrimination suit, but they may not recover attorney’s charges from unsuccessful plaintiffs, save for when they can evidence that the lawsuit was baselessand unfounded. A high bar to clear. In addition, the legal fee for successfully representing a lawsuit at trial normally runs into colossal amounts. This one sided ratchet will ardently discourage employers from dismissing employees who can file convincing anti-discrimination suits. It also serves as an enticement for disgruntled or former employees to file suits. As a result, under ENDA, organizations would become more indisposed to hire such “protected class” personnel in the first place.
ENDA also allows for therepression of speech at the place of work. Employers may be sued for damages if they are negligent in failing to notice, bar or castigate employees whose speech or demeanor creates an environment that is perceived to be discriminatory. The implementation of ENDA would broaden these restrictions to definite and supposed sexual orientation or gender identity.”
In conclusion, the law creates new, idiosyncratic protected classes who leave employers and organizations guesstimating about how to comply with the law and exposes them to inconceivable liabilities. It alsocompounds government prying in the labor markets in fashions that may harm the economy.ENDAcould result in the banning of recruiting decisions that are based on the moral and religious compunctions of individual employers.
Furthermore, it would limit the ability of individual employers to manage their own enterprises and will be an unwarranted assault on the principles and freedoms of persons of goodwill whose opinion about the subjectsof marriage and sexuality is not in-synch with the government’s view. It is agreed that employers and organizations should respect the fundamental dignity of their employees, but ENDA in not the right step to realize that goal.
113th Congress 2013–2015. (Nov 12, 2013). S. 815: Employment Non-Discrimination Act of 2013. Congress. Retrieved May 11, 2014, from https://www.govtrack.us/congress/bills/113/s815/text
Barusch, A. (2008). Foundations of Social Policy: Social Justice in Human Perspective (3 ed.). Cengage Learning.
Brinker, L. (2013, November 2). Debunking Conservative Lies About The Employment Non-Discrimination Act (ENDA). Retrieved May 11, 2014, from Media Matters for America: http://mediamatters.org/research/2013/11/02/debunking-conservative-lies-about-the-employmen/196724
Brown, J. G., & Ayres, I. (2011). Straightforward: How to Mobilize Heterosexual Support for Gay Rights. Princeton: Princeton University Press.
PFAW. (2014). Employment Non-Discrimination Act: Judging Employees by Their Work Performance, Not by Who They Are or Who They Love. Retrieved May 11, 2014, from People for the American Way: http://www.pfaw.org/media-center/publications/Employment-Non-Discrimination-Act-Judging-Employees-by-Their-Work-Performance-Not-by-Who-They-Are-or
Sherk, J., & Messmore, R. (2007, October 24). Freedom of Religious Schools and Employers Threatened by ENDA. Retrieved May 10, 2014, from The Heritage Foundation: http://www.heritage.org/research/reports/2007/10/freedom-of-religious-schools-and-employers-threatened-by-enda
Tadlock, B. L., & Riggle, E. D. (1999). Gays and Lesbians in the Democratic Process. New York: Columbia University Press.
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