ENDA House Vote: Boehner Doesn't Want It, But His Constituents Do

A woman walking underneath a large pride flag

In what seems to be a rerun of a bad series, the Senate has passed a bill that the House intends to block. On Thursday, the Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64 to 32. Ten Republicans teamed up with the Democratic majority to pass the bill, which bans workplace discrimination based on sexual orientation and gender identity. Despite very strong constituent support, Speaker John Boehner (R-Ohio) and House Republicans appear poised to block the passage of ENDA in the House. There are many reasons to question this decision.

There is clear evidence of discrimination based on sexual orientation and gender identity in the workplace. According to the Center for American Progress (CAP), " anywhere from 15% to 43% of gay people have experienced some form of discrimination and harassment at the workplace." In addition, CAP claims "90% of transgender workers report some form of harassment or mistreatment on the job." The Williams Institute found that 8-17% of lesbian, gay, and bisexual workers report being fired or denied employment simply because of their sexual orientation.

This chart by American Progress demonstrates that it is legal to fire employees based on sexual orientation in many states and that many Americans have no legal protections against such discrimination:

ENDA enjoys very strong constituent support as well. More than 70% of Americans support laws that would make discrimination based on sexual orientation illegal, including a majority of Republican voters. A majority of citizens in all 50 states support ENDA-like legislation. In fact, in Boehner's home state of Ohio, 71% of people support ENDA-like legislation.

So why are Republicans opposing ENDA? The first major conservative argument is that ENDA will harm small businesses by increasing the amount of litigation and court costs.  Boehner and the conservative Heritage Foundation claim ENDA will lead to "frivolous" and "unimaginable" litigation.

However, studies have strongly disputed these claims. The non-partisan Government Accountability Office (GAO) showed that in states that ban sexual orientation discrimination, only 1.8-6.7% of all discrimination claims were based on sexual orientation. For example, in Colorado only 35 out of a total 516 (6.7%) job discrimination cases involved sexual orientation, and just one that involved gender identity. In California, only 5.6% of cases were based on sexual orientation or gender identity. Given these statistics, it is hard to imagine that a federal law would lead to "unimaginable litigation."  

The second major conservative argument hinges on the belief that sexual orientation has not been significantly demonstrated to be "biological," and that sexual orientation and gender identity are fluid. The Heritage Foundation claims sexual orientation and gender identity are "subjective, self-disclosed, and self-defined." For this reason, they oppose extending anti-discrimination laws to the LGBTQ community, but support anti-discrimination laws governing unchangeable, "readily apparent" features such as race and gender. Should discrimination be allowed because some people believe the characteristic discriminated upon to be fluid?

ENDA has incredibly high levels of constituent support and available evidence contradicts conservative arguments concerning excess litigation. Finally, religious exemptions, which helped bring some Republicans on board, are present in the law. Conservative opposition to ENDA in the face of these factors is incomprehensible. Conservative opposition is at best ignorant of evidence surrounding anti-discrimination laws and at worst a result of outright anti-LGBTQ sentiment.