Ms. Salwak noted in her post about the letter that Senator Lugar's concerns appear to be about money. It looks like it's too expensive to stop job discrimination against LGBT people.

I have two words for Senator Lugar: NOT SO

Point I: ENDA Would Not Unduly Increase Litigation

Senator Lugar says: "However, I remain concerned that ENDA would unduly increase litigation, create momentum for additional contentious protected employee classifications, and adversely affect the enormous number of small businesses not covered by the bill's 15-employee exemption."

The available evidence suggests that ENDA is not likely to unduly increase litigation.

In 2001, the Senate Committee on Health, Education, Labor and Pensions issued a report on ENDA. It noted that "the EEOC expects that implementing S. 1284 would increase its annual caseload (currently about 80,000 cases) by 5-to-7 percent." That's not an undue increase in litigation.

Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows also shows that there is not likely to be an undue increase in litigation.

California had only 821 sexual orientation discrimination lawsuits last year for a population of 37 million. What does this mean for the idea that ENDA will cause a lot of litigation?

• This means only 0.1% of the 724,000 business firms in California were sued based on sexual orientation.
• If the same numbers hold true for the 8% of US businesses with between 20 and 99 employees, then there will be approximately 500 lawsuits for the half-million businesses under 100 employees.
• The California numbers show that sexual orientation lawsuits accounted for only 4% of the 18,785 discrimination cases in California that year.

Thus, Senator Lugar's concern about small businesses with over 15 employees is misplaced. The evidence shows a trickle, not a flood. There is no reason to expect an undue amount of litigation from ENDA.

Point II: ENDA Will Not Lead Employers To "Probe" Their Employees

Senator Lugar also says: "I also am concerned that ENDA would induce employers to probe the sexual orientation of their employees as a means of preparing for or preventing potential lawsuits or EEOC actions. Such a development would not be positive for employee privacy or workplace dynamics, and it could have unpredictable consequences for the fairness of hiring decisions. I understand that ENDA does not require such inquiries; however, many employers will see some degree of information about the sexual orientation of their employees as a vital element in dealing with potential litigation."

This argument is mistaken on two levels.

Most significantly, Senator Lugar's argument is that ENDA will cause employers to begin inquiring into people's sexual orientation and gender identity because they're afraid of being sued. As if employers weren't discriminating against us before. As if employers will say "We liked you before, gay people, but now that you're protected by ENDA, the love affair is over!"

Right. The anti-discrimination bill is the cause of discrimination. Uh, no.

Secondly, the idea that employers should collect statistics on their employees' sexual orientation is rejected by ENDA itself. The text of the bill specifically prohibits the collection of statistics or the imposition of a "gay quota." (Sections 4(f) and 9) The bill also prohibits "disparate impact" lawsuits claiming that there are not enough gays in the workplace. (Section 4(g))

Senator Lugar's suggestion that ENDA will cause employers to start tracking their employee's sexual orientation and gender identity ignores what ENDA specifically says.

Please let Senator Lugar know that his concerns about ENDA are misplaced, and that he should support it.

His letter says he will listen to "thoughtful arguments." Start arguing.

Sen. Richard G. Lugar (R) DC Office:202-224-4814 Local office: 812-465-6313 (Click here for email)