Dr. Jillian T. Weiss

Indiana's Lugar: Fighting ENDA

Filed By Dr. Jillian T. Weiss | September 15, 2009 10:30 AM | comments

Filed in: Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, Indiana, Lugar

Last week, Indiana's Senator Richard Lugar was our ENDA Legislator of the Day. Reports were that he was one of a few fair-minded Republican Senators who favored ENDA.

But those reports were apparently wrong. Betty Greene Salwak has posted a letter she received from the Senator in July stating his opposition to the ENDA.

He says he's willing to fight you for it, though. "I will continue to listen to thoughtful arguments about the bill," he said in his letter. Well, I think a few thoughtful noogies are in order for Senator Lugar. (This photo shows the President has already been there and done that, and I'm hereby encouraging him to do it again.)

Senator Lugar raises two arguments against ENDA. Both are mistaken and easily rebuttable. Are you willing to fight for ENDA?

Please call Senator Lugar today and make at least one of the specific points listed below. Then post a comment below about how your call went.

Arguments and contact info after the jump.

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?

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)

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Annette Gross | September 15, 2009 2:57 PM

I called his office. I spoke to a woman who said she would pass my request to the Senator. I asked her if she knew what his stance was about the bill and she said she didn't know.

When I called, the person who answered said, in some surprise: "I didn't know he had come out against that?!"