Employment Discrimination

Ryan Anderson Takes Break From War On Marriage Equality To Target Nondiscrimination Laws

The Heritage Foundation’s Ryan Anderson is one of the leading voices of the movement opposed to full legal equality for LGBT people. In the wake of the Supreme Court’s marriage equality ruling, he rushed out a book designed to be a road map for a continuing culture war to resist and overturn marriage equality.

This week, he published another broadside against the LGBT movement — this one a Heritage Foundation “backgrounder” making the case that laws prohibiting discrimination on the basis of sexual orientation and gender identity are unnecessary and “threaten freedom.” Given that Anderson is actively arguing for a generational culture war against marriage equality, it is somewhat difficult to take seriously the concern stated in his new paper that nondiscrimination laws “risk becoming sources of social tension rather than unity.”

Echoing the language of the U.S. Conference of Catholic Bishops, Anderson starts by saying, “All citizens should oppose unjust discrimination,” adding, “but sexual orientation and gender identity (SOGI) laws are not the way to achieve that goal.” His claimed opposition to unjust discrimination may sound promising but, like the bishops, Anderson suggests that moral judgments about homosexual behavior are always legitimate justifications for discrimination.

Government should never penalize people for expressing or acting on their view that marriage is the union of husband and wife, that sexual relations are properly reserved for such a union, or that maleness and femaleness are objective biological realities that people should accept instead of resist. Such views are inherently reasonable, even as people continue to disagree about them.

SOGI laws, he says, “do not protect equality before the law” but “grant special privileges.”

Anderson makes a libertarian anti-regulatory argument, charging that SOGI laws “expand state interference in labor markets, potentially discouraging economic growth and job creation,” though he offers no evidence that nondiscrimination laws have that economic impact.  (A 2015 study by a Colorado-based think tank found no evidence that anti-discrimination laws hurt small business growth.) Anderson says such laws “chip away at the at-will employment doctrine that has made the American labor market so much stronger than European labor markets.”

Anderson argues instead for “liberty under law,” saying employers should be allowed to fire employees for virtually any reason, and insists that nondiscrimination laws make that harder to do by making employers subject to legal action for violating those laws. Under Anderson’s conception of liberty under law, businesses as well as charities and civic associations “would be generally free to operate by their own values.” He argues that the free market will take care of problems with unjust discrimination:

Any business in the United States that posted a “no gays allowed” sign would soon find the power of public opinion expressed in the marketplace intolerably costly, without any need for the government to weigh in.

While that might be the reaction in gay-friendly locales, it is not hard to imagine pressure being applied the other way in some conservative communities, especially those where local churches and anti-marriage-equality activists have taken up Anderson’s charge to wage a long-term campaign to “bear witness to the truth” within a culture that he says has been told a lie about marriage.

Anderson’s 15-page paper summarizes its key points thusly:

  • Sexual orientation and gender identity (SOGI) laws pose serious problems for free markets and contracts, free speech and religious liberty, and the health of our culture and pluralism.
  • SOGI laws threaten Americans with liability for alleged “discrimination” based on subjective identities, not objective traits.
  • SOGI laws mandate bathroom and locker room policies that undermine common sense in the schoolhouse and the workplace. They expand state interference in labor, housing, and commerce.
  • Sexual orientation and gender identity are radically different from race and should not be elevated to a protected class in the way that race is.
  • Government should never penalize people for expressing or acting on their view that marriage is the union of husband and wife, that sexual relations are properly reserved for such a union, or that maleness and femaleness are objective biological realities.
  • Market competition can provide nuanced solutions that are superior to coercive, one-size-fits-all government SOGI policy.

Anderson describes SOGI laws, including the proposed federal Equality Act, as if they are a secretive, nefarious plot by the LGBT movement:

Activist groups such as the Human Rights Campaign (HRC)—an influential, sophisticated, and lavishly funded LGBT -activist organization—are pushing SOGI laws on unsuspecting citizens at the federal, state, and local levels.

First, it takes brass for Anderson to describe HRC as “lavishly funded” from his perch at the Heritage Foundation, whose 2013 income topped $112 million, with its political arm Heritage Action bringing in another $8.8 million — together more than double the combined income of HRC and its educational arm. Heritage has assets of well over $200 million and its already massive complex on Capitol Hill is in the midst of a major expansion. Lavishly funded, indeed.

Second, laws protecting people from discrimination on the basis of sexual orientation and/or gender identity are not being pushed invisibly “on unsuspecting citizens.” They are the result of decades of hard-fought advocacy by LGBT people and their allies. Twenty-two states and the District of Columbia have laws against discrimination in housing or on the job and almost as many have bans on discrimination in public accommodations. Protections against discrimination on the basis of sexual orientation or gender identity are also in place in dozens of cities and counties.

Anderson, of course, does not mention that more than two-thirds of Americans – 69 percent – support laws to protect LGBT people against discrimination in workplaces, housing, and public accommodation, according to a 2015 survey by the Public Religion Research Institute. Even 60 percent of white evangelical Protestants support workplace nondiscrimination laws. “In fact,” reports PRRI, “fully three-quarters (75 percent) of Americans incorrectly believe workplace discrimination laws are already on the books.” In addition, 60 percent of Americans oppose allowing a small business owner to refuse products or services to gay and lesbian people, even if doing so violates their religious beliefs. 

Nevertheless, nondiscrimination protections are being actively fought by opponents of equality. Anderson praises Houston voters who recently overturned the city’s equal rights ordinance after a brutally bigoted campaign centered on the groundless, inflammatory charge that the law would give child molesters an open door to attack children in public bathrooms. Anderson’s paper raises similar “privacy and safety” concerns and says that allowing transgender people to use bathrooms and locker rooms would defy “common sense.” What actually defies common sense is legislation that has been proposed in some states requiring transgender people to use only bathrooms designated for the gender they were assigned at birth, which would mean requiring bearded trans men to use women’s restrooms.

Anderson devotes substantial time to criticizing what he calls a “false analogy” between same-sex marriage and interracial marriage, wrongly claiming that such analogies are the primary justification for SOGI laws. In reality, advocates for LGBT equality have been pushing for legal protections against discrimination for many years, well before the organized marriage equality campaign of the past decade or two.  Anti-discrimination laws protect people on many grounds other than race, including religion, gender, disability, and marital status. They are not grounded in an analogy to the brutal history of race in America but in the principles of constitutional and civic equality.

Anderson repeatedly claims that nondiscrimination laws are vague and overly broad and do not make clear what actions might constitute discrimination. But in many, if not most, cases, sexual orientation and/or gender identity protections are added to existing civil rights laws that prevent discrimination on the basis of race, religion, national origin, and a range of other characteristics. Anderson does not explain why there should be any greater confusion about what constitutes discriminatory actions when applied to sexual orientation or gender identity.

 

EEOC Says Anti-Gay Discrimination Is Illegal Sex Discrimination

EEOC: Sexual orientation discrimination is sex discrimination because it means treating an employee less favorably because of their sex.
PFAW Foundation

Peggy Young Will Get Her Day in Court

The Supreme Court rejects a company's narrow interpretation of the Pregnancy Discrimination Act.
PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Peggy Young's employer made her choose between her job and her pregnancy, but can employers do that?
PFAW Foundation

President Obama Signs Executive Order Protecting LGBT Workers

Today President Obama signed an executive order protecting LGBT employees of federal contractors from workplace discrimination. In remarks this morning, the president said that our government “will become just a little bit fairer” today.

President Obama pointed out that many Americans go to work every day with the fear that they could lose their job because of who they are. It’s time to “address this injustice for every American,” he said, urging Congress to pass the Employment Non-Discrimination Act (ENDA). While today’s executive order expands protections to millions of LGBT people who work for federal contractors, we still lack a nationwide law to protect LGBT workers across the board. In many states, you can still be fired for being lesbian, gay, bisexual, or transgender.

Following the Obama administration’s announcement that an executive order was in the works, People For the American Way joined nearly 100 other organizations, including many faith groups, in a letter urging the president to reject a call for an additional religious exemption — which ultimately was not included. The letter noted:

Religious freedom is one of our most cherished values, a fundamental and defining feature of our national character. It guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs within certain limits. It does not, however, provide organizations the right to discriminate using taxpayer dollars. When a religiously affiliated organization makes the decision to request a taxpayer-funded contract with the federal government, it must play by the same rules as every other federal contractor. [emphasis added]

Jonathan Capehart from the Washington Post reports that in the past few weeks, there have been “extraordinary meetings” in the White House among LGBT and religious communities about both the necessity of protecting workers from discrimination and religious liberty. As Capehart writes, “The president’s action today shows the two are not mutually exclusive.”

PFAW

Speaker Boehner's Secret Vault

Six months later, the Employment Non-Discrimination Act (ENDA) is still locked away by House GOP leadership. Take action with People For the American Way.
PFAW

Our ENDA mission started with Senator Kennedy

Eighteen years later, five after his passing, we are still working to complete the mission that Senator Kennedy laid before the nation. We are keeping the pressure on all of Congress to pass ENDA. The time is now!
PFAW

Where is Speaker Boehner hiding all the good bills like ENDA?

Senators who stood on the right side of history and voted for passage should be thanked. Senators who stood with anti-gay extremists should hear your disappointment. There are more instructions here and here, and you can always reach them by dialing 202-224-3121. As we move on to the House, if you have not added your name already, sign our petition now to keep the pressure on all of Congress to pass ENDA. The time is now!
PFAW

Scenes from today's ENDA debate - final votes tomorrow

The final Senate votes on ENDA will take place tomorrow, starting at 11:45 am EST. Now is your last chance to call your senators. There are more instructions here and here, and you can always reach both of them by dialing 202-224-3121. Don’t forget to sign our petition. The time is now – say yes to common sense and no to anti-gay extremists – pass ENDA!
PFAW

Scenes from the floor on the second day of ENDA debate

Today's speeches have already begun, and amendment votes are also in progress. Please keep calling the Senate. There are more instructions here and here, and you can always reach both of your senators by dialing 202-224-3121. Don’t forget to sign our petition. The time is now – say yes to common sense and no to anti-gay extremists – pass ENDA!
PFAW

Scenes from the floor on the first day of ENDA debate

From letters to alerts and more, the entire PFAW family has been working on ENDA. We still need your help. Please keep calling the Senate as this week's debate continues. There are more instructions here and here, and you can always reach both of your senators by dialing 202-224-3121. Don’t forget to sign our petition. The time is now – say yes to common sense and no to anti-gay extremists – pass ENDA!
PFAW

Senators Pryor and Manchin join list of ENDA supporters, contact your senators now

ENDA and workplace fairness for all have a clear majority on their side, but every vote is still critical. Thank those already in support for protecting LGBT workers. Tell those who aren't yet on board to say yes to common sense and no to anti-gay extremists.
PFAW

Senator Nelson cosponsors ENDA, leaves 3 votes to go, contact your senators now

Every vote will be critical to passage. Thank those already in support for protecting LGBT workers. Tell those who aren't yet on board to say yes to common sense and no to anti-gay extremists.
PFAW

Leader Reid announces ENDA vote – contact Senate now

Every vote will be critical to passage. Thank those already in support for protecting LGBT workers. Tell those who aren't yet on board to say yes to common sense and no to anti-gay extremists.
PFAW

Put this toolkit to good use and call your Senators today, "pass ENDA now!"

The government may be shut down, but Congress is still on the job, and we need to show them that they need to get back to work not only on the budget but on all of the urgent issues that we care about.
PFAW

PFAW Releases New Toolkit on the Employment Non-Discrimination Act

First introduced in 1994, ENDA has been introduced in every subsequent session of Congress except one, including its introduction this April by a bipartisan group of lawmakers in the House and Senate. Advocates in Congress and on the ground believe that the growing momentum surrounding LGBT equality should help ENDA move forward this year.
PFAW

Employment Non-Discrimination Act: Judging Employees by Their Work Performance, Not by Who They Are or Who They Love

First introduced in 1994, ENDA has been introduced in every subsequent session of Congress except one, including its introduction this April by a bipartisan group of lawmakers in the House and Senate. Advocates in Congress and on the ground believe that the growing momentum surrounding LGBT equality should help ENDA move forward this year.

Bad News for Workers in the Supreme Court's Vance Case

The Corporate Court ignores the realities of the workplace and frustrates the goals of Title VII in narrowing the definition of a supervisor.
PFAW Foundation

PFAW Foundation: Another Big Day for the Corporate Court

WASHINGTON – In response to the Supreme Court decisions in Vance v. Ball State University, University of Texas Southwestern Medical Center v. Nassar, and Mutual Pharmaceutical Co. v. Bartlett, People For the American Way Foundation President Michael B. Keegan released the following statement:

“In three closely divided decisions today, the five far-right Justices again opted to side with powerful corporations rather than protect the rights of individual workers and consumers. These decisions are just the latest example of this Supreme Court majority’s ideological agenda that undercuts the rights of everyday Americans.

“In her Vance dissent, Justice Ginsburg hit the nail on the head when she described instances of real-life work harassment and noted that ‘as anyone with work experience would immediately grasp,’ the reality faced by workers is very different from the assumptions of the Court’s right-wing majority. But as the Supreme Court’s conservative bloc has proven again today, rulings from this court follow the dictates of power—not law—and are entirely disconnected from the realities of most Americans. The highest court in the land has made clear that it’s committed to laying a blueprint for corporations to have free rein to trample the rights of individuals.”

###
 

Share this page: Facebook Twitter Digg SU Digg Delicious