The Bilerico Project | Daily experiments in LGBTQ

(Ed. note: The following is a guest post from HRC Regional Field Director Stuart Rosenberg in response to Marla Stevens' post on the ENDA. Enjoy.)

In light of recent posts on this blog regarding the Employment Non-Discrimination Act (ENDA), which was reintroduced in Congress this week, I wanted to share some additional insights on behalf of the Human Rights Campaign on why we have made putting these protections into law one of our top legislative priorities this year. We certainly respect right of people like Bilerico.com contributor Marla Stevens to question the merits of passing ENDA and are prepared to debate and defend the need for this federal legislation. However, to summarily dismiss the ways that GLBT people in Indiana and the other 32 states that offer no protections to gay, bisexual and lesbian Americans and the 41 states that offer no protection for gender identity, diminishes the legitimate ways ENDA will actually help people in our community.

In many states, the prospects for providing employment protections are quite dim, which is why a federal law is needed. HRC's staff was on the ground with you in Indiana to help successfully beat back an anti-gay marriage amendment in the Indiana Legislature earlier this year so we have a sense of what you are up against. Passing ENDA would indeed be a step in the right direction for the GLBT community in Indiana and in the U.S. -- and we need your help to make that happen.

Your members of Congress are critical to our success. We need the GLBT community contacting and reaching out to the new members you helped elect last November. The opposition in Congress from the radical right will be intense. We've already seen their campaign to defeat Hate Crimes and ENDA start. Nothing would empower our opponents more then defeating our legislative initiatives in this new Congress. We need every vote we can muster -- and your state's delegation is critical.

I'd like to make a few additional points that address specific concerns about the legislation [after the jump]:

• ENDA covers employers of the same size as Title VII, the law covering discrimination on the basis of race, sex, national origin, and religion. Title VII applies to employers with 15 or more employees, a number that will benefit over 83% of workers in Indiana .
Plaintiffs under any civil rights statute must win their cases. But civil rights laws don't just give aggrieved employees a way to seek justice; they change the workplace culture and force employers to take a proactive stance against discrimination. The Civil Rights Act of 1964 didn't eradicate all workplace discrimination based on race or sex, but it clearly changed for the better the way our nation's workplaces treat racial minorities and women. I simply can't overstate the value of these laws in changing the culture.
• Regarding the inability for GLBT civil service job applicants to earn extra points for military service, this problem results from the military's discriminatory don't ask, don't tell policy, not ENDA's drafting. HRC supports repeal of DADT, but the fact that ENDA does not address the inequality caused by that law does not lessen the bill's value.
• Disparate impact cases use statistics to show that an employer practice, which is nondiscriminatory on its face, has a greater impact on one group than on another. Disparate impact cases are, indeed, not available under ENDA, largely because they would require having accurate statistics regarding the number of gay, lesbian, bisexual and transgender people in an employer's workforce versus the available labor pool. Access to disparate impact under ENDA would lead to employers collecting information about employees' sexual orientation and gender identity - in essence, forcibly outing all gay, lesbian, bisexual and transgender employees in order to insulate themselves from liability. And, unlike in the case of race or sex under Title VII, statistical data on GLBT people in the available community workforce would be very difficult to ascertain.
• ENDA does specifically address a seemingly-neutral practice that could have a disproportionate impact on GLBT employees: conditioning employment on marriage or the ability to marry. In most jurisdictions, same-sex couples do not have access to marriage and therefore their inability to marry can be used as a proxy for discrimination based on sexual orientation or gender identity. While an employer requiring a manager to be married to create an "image of stability" for his staff and/or clients may seem arcane and unusual, employers who are determined to discriminate against GLBT people will find ways to do so.
• Finally, if passed, ENDA would apply to federal, state and local government employees.
• For more information on ENDA, visit www.hrc.org/enda.