Time to ban job discrimination against gays

The Baltimore Sun

On Sept. 5, Michael Carney, an openly gay Massachusetts police officer, eloquently told members of the House of Representatives why the Employment Non-Discrimination Act continues to be essential. Mr. Carney, who endured job discrimination once he made the courageous decision to come out to his colleagues, said, "Had I not been successful in fighting the bias that tried to prevent me from working, all the good I have done for some of the most vulnerable people in my community would never have happened."

If passed this autumn, the legislation, known as ENDA, would protect the freedom of Americans like Officer Carney to do the jobs that they love without enduring constant discrimination and harassment. The legislation would finally make it illegal for employers to fire, refuse to hire, or refuse to promote employees based on their sexual orientation or gender identity.

Unfortunately, this legislation remains necessary. Title VII of the 1964 Civil Rights Act prohibits discrimination based on race, color, religion, sex, and national origin, but Americans in 31 states continue to be fired or denied employment because of their actual or perceived sexual orientation or gender identity. As a result, many gay and transgender citizens must make the unacceptable decision between being open about their identity - and risking retribution - or staying in the closet with the hope of keeping their jobs.

Since I worked to draft the original version of ENDA in 1993, this legislation has faced an uphill battle in Congress. However, things are changing. ENDA enjoys bipartisan support in Congress. A 2006 national Gallup Poll reveals that 89 percent of respondents support equal job opportunities for gay people, and 80 percent of Fortune 500 companies now have policies prohibiting discrimination based on sexual orientation. Across the country, employers large and small are recognizing that inclusive employment policies improve recruitment, decrease turnover and boost productivity.

As these developments illustrate, an overwhelming majority of Americans share my conviction that society should protect the liberty of all people to do their jobs. If the government accommodated all the private prejudices of employers, this would deny citizens the equal opportunity to do the jobs for which they are qualified. Just as the government does not allow private beliefs about race, religion and sex to adversely affect the employment opportunities of Americans, it should not allow private beliefs about sexual orientation and gender identity to adversely affect the careers and livelihoods of gay and trans- gender citizens.

Corporate executives and entry-level factory workers alike have shared in the shattering experiences of discrimination. While some lose their jobs, others feel the effects of bias in more subtle ways. For example, a 2007 survey found that gay men earn 10 percent to 22 percent less than straight men with the same education, experience, race, occupation, and geographic location.

Of course, gay people may eventually find other employers who do not discriminate against them, but this does little compensate for their sense of pain and indignity. The burden that some employers may face under ENDA is necessary for ensuring that all Americans have the freedom and security to build their careers.

As Officer Carney told members of the House of Representatives, "Discrimination impacts the lives of everyone. It not only deprives people of their livelihoods and safe working conditions, it also robs the public of vital services that they would have otherwise received from talented and dedicated workers."

People in our society will disagree on some issues. But, in spite of our differences, we should come together and recognize that all Americans must have the freedom and dignity to do their jobs. That requires the swift passage of ENDA.

Chai Feldblum is professor of law at Georgetown University and director of Georgetown Law Center's Federal Legislation Clinic. Her e-mail is feldblum@law.georgetown.edu.

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