I'll only do so if it's fully inclusive.
November 7, 2013 12:26 PM   Subscribe

By a vote of 64-32. the United States Senate has passed the Employment Non-Discrimination Act. Full passage of ENDA would make it illegal to discriminate against someone on the basis of sexual orientation or gender identity. It is already illegal to discriminate on the basis of race, color, sex, nationality, religion, age or disability.

From here, the bill will apparently go nowhere, as Speaker Boehner said that he "believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs" and that these protections are covered by existing law.

States where you can be fired for being gay

ENDA explained

The late Senator Ted Kennedy was a vocal supporter of a previous version the bill.

A 2007 version of ENDA was hotly controversial because if its exclusion of transgender people.

In August 2012, the EEOC ruled in Macy v. Holder (Metafilter link) that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.
posted by roomthreeseventeen (90 comments total) 21 users marked this as a favorite
 
WOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
posted by scody at 12:31 PM on November 7, 2013 [3 favorites]


I'm looking forward to in 2014 that gay rights can now be used as a wedge issue against Republicans: not to the same extent and effectiveness as Republicans used it against Democrats in years past, but the very fact that it's possible is astounding.
posted by MoonOrb at 12:32 PM on November 7, 2013 [12 favorites]


The House won't even bring it to a vote so this is as productive as voting to repeal Obamacare.
posted by The 10th Regiment of Foot at 12:33 PM on November 7, 2013 [18 favorites]


From here, the bill will apparently go nowhere, as Speaker Boehner said that he "believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs" and that these protections are covered by existing law.

Was there any other context to that? It sounds like he's using a dog whistle in the human audible range (if you get my as subtle metaphor), either that the LGBT workers aren't American or that American jobs aren't worked by LGBT employees.

I'm wondering if we're at the stage where he definitely won't win a primary race supporting LGBT rights but isn't guaranteed at all to win/lose the election proper by doing so given the (wonderfully) shifting views of the populace over the past decade. Weird zone of political calculus created by the eclipse of a hateful portion of the party and his own cowardice.
posted by Slackermagee at 12:34 PM on November 7, 2013


The House won't even bring it to a vote so this is as productive as voting to repeal Obamacare.

Apart from the fact that it needs a simple up-or-down vote, it's productive in that it reminds Americans that modern conservatism is essentially a version of the Confederacy that hates more people in more places, and has chosen to declare a new Civil War in the legislature and the judiciary instead of the battlefield.
posted by zombieflanders at 12:37 PM on November 7, 2013 [37 favorites]


The House won't even bring it to a vote so this is as productive as voting to repeal Obamacare.

A way of appeasing one's base and nothing more, then?

posted by Pope Guilty at 12:37 PM on November 7, 2013


So wait, a law that protects gay workers is bad because it will "cost American jobs"? Does he even try to make sense before he crawls into his bottle these days?
posted by 1adam12 at 12:38 PM on November 7, 2013 [14 favorites]


More republicans than expected:
The final vote was 64-32, with 10 Republicans joining Democrats. The Republican senators backing the legislation were cosponsors Susan Collins (R-Maine) and Mark Kirk (R-Ill.), along with Kelly Ayotte (R-N.H.), Jeff Flake (R-Ariz.), Orrin Hatch (R-Utah), Dean Heller (R-Nev.), John McCain (R-Ariz.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) and Pat Toomey (R-Pa.).
so that's something... too bad the House is hopeless. Still, 64-32 is revealing.
posted by mdn at 12:38 PM on November 7, 2013 [1 favorite]


It's also worth noting that the way young people tend to vote defines their votes for the rest of their lives. In an increasingly diverse population undergoing economic hardship, why would they vote for a party that (for the foreseeable future) hates immigration, wants to refuse anyone who's not white or male or middle- to upper-class the right to vote, hates GLBT people, tries to eliminate feeding the poor and children despite all evidence pointing to it being an economic stimulus, and refuses to even attempt a health care system that is successful the world over?
posted by zombieflanders at 12:42 PM on November 7, 2013 [8 favorites]


Was there any other context to that? It sounds like he's using a dog whistle in the human audible range (if you get my as subtle metaphor), either that the LGBT workers aren't American or that American jobs aren't worked by LGBT employees.

I think this is more in the sense that certain conservatives believe any kind of litigation against businesses is a drag on the productivity of the noble job creators.

I mean, I think that's bullshit, but that's my reading of what he's saying.
posted by Bulgaroktonos at 12:43 PM on November 7, 2013 [5 favorites]


Senate: It would behoove this august institution to enshrine the dignity and rights of all Americans by passing this law.

House: Nuh-uh motherfuckers *flings poo at Senate*, you can't make us 'cause freedom! *huffs paint*.
posted by BrotherCaine at 12:44 PM on November 7, 2013 [18 favorites]


Paul Ryan Signals Conditional Support for ENDA

The condition being, of course, that Trans people can continue to be treated like garbage.
posted by munchingzombie at 12:45 PM on November 7, 2013 [3 favorites]


A way of appeasing one's base and nothing more, then?

In a way, yes. The GOP has a talking point that sticks and distracts from their major fuck-up on the shutdown in the Obamacare website debacle so it's time to throw out a bone that a majority of voters support and make them squirm as they know rejecting it will expose them as the bigots they are.

Edit: Sorry to sound cynical, but I don't really see them as doing this for the reason that it's the morally correct and humanly decent thing to do.
posted by The 10th Regiment of Foot at 12:46 PM on November 7, 2013


I'd say, as a member of the legislative branch, Mr Boehner's concern-trolling about the effect this will have on the poor defenseless judicial system is pretty irrelevant.

Can we just start the revolution now, please?
posted by wabbittwax at 12:49 PM on November 7, 2013 [1 favorite]


Next up...Non Discrimination Against People Who Don't Like Cilantro!
posted by spicynuts at 12:54 PM on November 7, 2013


On ENDA, it will take a long, hard struggle to break House GOP
Gay rights advocates are bracing for another long hard struggle to break the House GOP leadership’s opposition to ending gay workplace discrimination, similar to the one that it took to repeal Don’t Ask Don’t Tell.

I’m told advocates are eying a strategy that will involve recruiting gay victims of workplace discrimination in the districts of individual House Republicans, spotlighting their stories, and getting them to lobby their lawmakers. This is similar to the campaign to humanize victims of DADT — service-members who served under threat of losing their jobs, or who actually did get kicked out of the military — which was a major part of the DADT repeal campaign.

The idea is that the war over gay rights is in one key respect not like other ongoing political battles. While immigration reform is probably dead in today’s GOP-controlled House, because far too few Republicans reside in districts with large Latino populations, the insulation of GOP lawmakers in politically homogenous districts does not mean the same thing when it comes to gays – because more and more Americans are personally acquainted with, or related to, gay people.

“There are LGBT people in every single Congressional district across America,” Fred Sainz, a spokesman for the Human Rights Campaign, tells me. “We are the children of Republicans and Democrats. We are equally represented in every socio-demographic group. We’re everywhere, and a part of every community.”
posted by zombieflanders at 12:54 PM on November 7, 2013 [4 favorites]


I continue to wonder how Boehner's district can be willing to return him to office. What reasonable person thinks a lawsuit based on violating federal law prohibiting discrimination in the workplace against LGBT folks is frivolous?

Also, for me outrage at refusal of House to even consider this basic legislation outweighs pleasure that the Senate passed it handily.

And finally, it is completely crazy that the Senate, which is far more insulated from political pressure than the House, is the body far more in tune with the American public.
posted by bearwife at 12:57 PM on November 7, 2013 [3 favorites]


The condition being, of course, that Trans people can continue to be treated like garbage.

Honestly, I'm surprised the condition wasn't "tax cuts". Seems like bills can't be passed nowadays unless they also include a tax break for someone, whether or not the bill costs anything to implement.
posted by backseatpilot at 12:57 PM on November 7, 2013 [1 favorite]


We’re everywhere, and a part of every community.

Confirming right-wing bigots' worst nightmares.
posted by wabbittwax at 12:58 PM on November 7, 2013 [2 favorites]


This was a vote worth holding, even if it won't go anywhere in the House this year.

Votes like this make support for an inclusive ENDA (1) bipartisan and (2) uncontroversial among Democratic party electeds. The Dems will take the House back sooner or later, and votes like this will make it much more likely that an inclusive ENDA will pass both houses when they do. Plus, everyone who voted for it will have a hard time voting against it when it comes up down the line.
posted by burden at 12:58 PM on November 7, 2013 [5 favorites]


Honestly, I'm surprised the condition wasn't "tax cuts". Seems like bills can't be passed nowadays unless they also include a tax break for someone, whether or not the bill costs anything to implement.
Well, in this case there was just an obvious and more efficient way of screwing over the disadvantaged.
posted by aw_yiss at 1:02 PM on November 7, 2013


Pat Toomey (R-Pa.).

Wow, really? I guess for the first time ever I have to thank him for something. And continue to thank the voters of my state for tossing Rick Santorum out on his ass too.
posted by Drinky Die at 1:02 PM on November 7, 2013 [4 favorites]


Next up...Non Discrimination Against People Who Don't Like Cilantro!

I assume you're making a joke and not diminishing the very big deal this is for many many people whose lives will be changed dramatically by this, but it's not at all clear.
posted by jessamyn at 1:03 PM on November 7, 2013 [55 favorites]


I think I may end up being forced to vote for Rob Portman to get re-elected just to try to encourage this sort of thing. I live in Ohio. I work for a small business that has Bible quotes everywhere. I am myself a churchgoer, but I have severe worries about my job security if I were to come out to my boss, because I think he would have a tendency to act first and think about whether it was a good idea for the business second. I think that's why these laws are actually good for business, because they stop people from making decisions based on things that are not actually sound business logic but knee-jerk biases.

The trouble is the number of politicians who are themselves still subject to those knee-jerk biases, who are probably thinking to themselves right now that it would be better if deviants like me left more jobs free for Good Upstanding Citizens.
posted by Sequence at 1:06 PM on November 7, 2013 [10 favorites]


This is progress. Good. But how about "states where you can be fired for no reason at all, with no cause, and no warning" being addressed?
posted by strixus at 1:06 PM on November 7, 2013 [6 favorites]


The Dems will take the House back sooner or later, and votes like this will make it much more likely that an inclusive ENDA will pass both houses when they do. Plus, everyone who voted for it will have a hard time voting against it when it comes up down the line.

The problem isn't the numbers, because I'd be willing to bet there are 18+ GOP Reps who would vote for it. But Boehner can't bring it up because the Homophobic Nutbag Tea Party caucus would savage him for it, which means he'd have no reason not to bring up immigration or to pass a clean CR for the debt limit or restore SNAP funding, which means that he wouldn't be an opposition leader anymore. Which is BS, and reveals him as one of the most cowardly Americans to ever hold legislative office, but that's the way his thinking goes. And barring a major electoral upheaval, the Dems won't take back the House before 2020 at the earliest, so he can hold off as long as he wants.
posted by zombieflanders at 1:06 PM on November 7, 2013 [1 favorite]


In August 2012, the EEOC ruled in Macy v. Holder (Metafilter link) that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.

No. the EEOC ruled that for federal employees only. It is not citable precedent for private or non-federal employees.
posted by Ironmouth at 1:06 PM on November 7, 2013 [6 favorites]


No. the EEOC ruled that for federal employees only. It is not citable precedent for private or non-federal employees.

Macy has been used as precedent in more than a few private lawsuits and settlements in the past year and a half.
posted by roomthreeseventeen at 1:10 PM on November 7, 2013 [1 favorite]


Bearwife:
"I continue to wonder how Boehner's district can be willing to return him to office."

Speaking as a constituent, because Boehner's district is comprised of counties that have been reliably conservative and Republican for decades (the last time the OH-8 had a Democrat as a representative FDR was in office) and in a general sense he's well-aligned with the politics of his constituency and popular with his voters.

OH-8 is enough in the bag for the GOP/Boehner that in 2012 the Democrats didn't even bother to run a candidate against him. In 2010, the Democratic candidate lost by a larger than 2 to 1 margin.

If Boehner is going to have a challenge to his seat -- and he's really unlikely to -- it will more seriously come from the right than the left.

(Disclosure: I have not voted for Boehner since I have lived in his district. But I don't pretend I'm not in the political minority here, either.)
posted by jscalzi at 1:12 PM on November 7, 2013 [18 favorites]


And finally, it is completely crazy that the Senate, which is far more insulated from political pressure than the House, is the body far more in tune with the American public.

It's because they are insulated from political pressure that they can respond better to the population as a whole rather than just their partisan constituency.
posted by BrotherCaine at 1:13 PM on November 7, 2013 [6 favorites]


Considering that the Senate was founded on the principle that it should only represent the will of the people in the most indirect way possible, it's a real WTF moment when the Senate is now more responsive to popular sentiment than the House.
posted by aw_yiss at 1:16 PM on November 7, 2013 [3 favorites]


Votes like this make support for an inclusive ENDA (1) bipartisan and (2) uncontroversial among Democratic party electeds. The Dems will take the House back sooner or later, and votes like this will make it much more likely that an inclusive ENDA will pass both houses when they do. Plus, everyone who voted for it will have a hard time voting against it when it comes up down the line.

I really hope you are right. I really want this to be more than symbolic, but I feel like things are just so contentious and I'm jaded by too many attempts to score points at the opposition's expense.
posted by The 10th Regiment of Foot at 1:18 PM on November 7, 2013 [1 favorite]


If "existing law" already covers these issues (riiiiight...) then it would appear those jobs have already been lost.
posted by brundlefly at 1:32 PM on November 7, 2013 [3 favorites]


zombieflanders, I don't share your optimism there. Like a lot of political arguments, those are only convincing (...or apparently sane) to people who already agree with them. For example:

In an increasingly diverse population undergoing economic hardship, why would they vote for a party that (for the foreseeable future) hates immigration reserves jobs and cultural space for Americans, wants to refuse anyone who's not white or male or middle- to upper-class the right to vote protects People Like Us from voter fraud, hates GLBT people defends traditional family values, tries to eliminate feeding the poor and children despite all evidence pointing to it being an economic stimulus promises not to raise taxes or encourage mooching, and refuses to even attempt a health care system that is successful the world over socialist-like extension of state power and needless bureaucracy into people's healthcare decisions?
posted by metaBugs at 1:36 PM on November 7, 2013 [6 favorites]


It's true, meta bugs, the majority nationally or even in most state-wide levels are in favor of the bill and are not Teabaggers. On the local, district level however the Tea Party can and do regularly act as GOP primary spoilers. The machine that has until now funded the Tea Party and their misinformation sources is turning back towards more traditional pro-business, less social issue focused GOP candidates, which should either translate to less focus on the Tea Party and less risk to sane Republicans (irony aside) in the primaries or a collapse of the party as a whole. The Koch brothers can't hold up the whole thing on their own.
posted by The 10th Regiment of Foot at 1:55 PM on November 7, 2013 [1 favorite]


And finally, it is completely crazy that the Senate, which is far more insulated from political pressure than the House, is the body far more in tune with the American public.

I wouldn't say the Senate is insulated from political pressure so much as public. I love the idea behind the bicameral system; this admiration a lot of the framers had for the Roman idea of some inner sanctum of law-making alongside a larger, more populist chamber. In practice though, yeah. Some days I wonder how it keeps limping along.
posted by Marisa Stole the Precious Thing at 1:58 PM on November 7, 2013


My brother told me that Mark Kirk's speech in favor of ENDA was his first on the Senate floor since his stroke. I'm still kind of wondering what alternate universe we've ended up in where Mark Kirk isn't an asshole.
posted by hoyland at 2:11 PM on November 7, 2013


metaBugs: I strongly disagree, otherwise we wouldn't see the public opinion change on stuff like this. The problem is getting them to vote.
posted by zombieflanders at 2:11 PM on November 7, 2013


Wow, this is really cool and I think it's a big sign that things are changing for the better. There have been a couple of pieces of good news on this front for me recently; one was Eyebrow's McGee's comment about including trans* issues in her school district's bullying policy and how that has the potential to spread around the US; that seems like the beginning of something that is a very, very big deal.

Another recent, albeit smaller, victory is that at my husband's (not progressive really at all) place of employment, he was in charge of re-writing the anti-discrimination policy and he had the opportunity to include protections for trans* people. It's a pretty small place but I hope it's also indicative of a shift towards recognition, acceptance, and protection in every workplace, even small businesses privately owned by people who don't really care personally about these issues*. There is still a really, REALLY long way to go in terms of creating protections for people based on orientation or gender identity but I feel hopeful whenever it looks like things are starting to move in the right direction.

*I should also mention that I'm really proud of my husband for making sure this was included even if it wasn't particularly popular with his colleagues.
posted by Mrs. Pterodactyl at 2:11 PM on November 7, 2013 [1 favorite]


I'm still kind of wondering what alternate universe we've ended up in where Mark Kirk isn't an asshole.

He was the one that tried to reintroduce the assault weapons ban when it expired back in 2008. He was also one of the few Republicans that voted (though failed) to keep it from expiring in the first place. So there's that.
posted by The 10th Regiment of Foot at 2:14 PM on November 7, 2013 [1 favorite]


‏Regional divide: No Republicans south of the Mason-Dixon line & east of Arizona voted for ENDA.

Also:

Slowly but surely, gay rights moves forward
It’s very big news that the Senate just passed the Employment Non-Discrimination Act by a comfortable vote of 64-32. Not because it means ENDA will become law anytime soon; breaking House GOP opposition could take years. Rather it’s a reminder that the culture continues to evolve on gay rights with an inexorability that even the GOP-controlled House will not be able to resist for too much longer.

Yes, it may take years. But House Republicans will ultimately submit and pass a federal law barring discrimination in hiring decisions against gays, lesbians, and transgender Americans. Or they will lose their majority, and Democrats will pass it instead.
[...]
What’s left standing in the way? The House GOP. But not for long. Even Republicans know time and demographics are wearing down what’s left of their opposition. As the RNC autopsy put it:
Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays — and for many younger voters, this issue is a gateway into whether the party is a place they want to be.
Here is Ari Fleischer, making a very good substantive case for ENDA and calling on House Republicans to recognize the inevitable and let it pass. Which they will, inevitably, do.

Another chapter was written today in the larger story. And as always, the credit really goes to ordinary LGBT Americans, and their relatives and friends, who continue to force us all to move in a better direction, year in and year out, insisting that the culture must, and will, recognize their basic humanity.
posted by zombieflanders at 2:14 PM on November 7, 2013 [7 favorites]


Anti-gay bigots are getting their clocks cleaned

It's so weird to see a party just utterly committed to narrowing itself into extinction. A conservative friend of mine has said more than once he'd be perfectly happy to be a Republican except for the part where the GOP essentially refuses to acknowledge his humanity as a gay man.
posted by scody at 2:30 PM on November 7, 2013 [9 favorites]


I'd say it's more than "just symbolic" in the long game, which involves multiple sessions of throwing good bills onto the floor while you engage in the process of creating that majority. The original ENDA and repeal of DADT were not passed in a single session either. Passage of them involved repeatedly putting them onto the desk of the Republican leaders of the day, and watching them squirm under the camera trying to justify their opposition. You use your supporters this year to put the pressure on the reluctant supporters next year.

In the short game, politics matters, and teabagger obstructionism is likely to be a major theme of the next election. Tea Party astroturf is wearing a bit thin, and more than a couple of 2012 races demonstrated that a moderate democrat is preferable to a reactionary republican in purple America.
posted by CBrachyrhynchos at 2:36 PM on November 7, 2013 [4 favorites]


At this point the Tea Party wing of the House Republicans is so predictable that all the Dems will have to do is push a bill like this or immigration reform during the primaries and next October and then have Obama and Reid give the whole thing just a little media push and they'll react exactly how you'd expect: crazy defensive obstructionist grandstanding, right on time to screw themselves and their fence-sitting colleagues over. It's like you just point them at a hill and they'll trip over themselves in the rush to go die on it. They're so predictably reactionary that they'll shoot themselves in the foot at the push of a button that the Dems control.
posted by jason_steakums at 2:51 PM on November 7, 2013 [7 favorites]


A conservative friend of mine has said more than once he'd be perfectly happy to be a Republican except for the part where the GOP essentially refuses to acknowledge his humanity as a gay man.

My father-in-law was a Bush Sr. apointee to head a major government agency. He personally authored some of the legislature that ranks at the top of the left's hit list if they ever secure a liberal supermajority. His uncle was the lobbiest for the automobile industry that gave us things like the highway bill. These two men worked harder than anyone I know to rally their friends and raise money for the election and reelection of Obama because of their utter disgust at the social conservatism and outright bigotry of the current GOP. When you're losing lifetime-loyal people like them, there's a serious leadership problem in the party.
posted by The 10th Regiment of Foot at 2:52 PM on November 7, 2013 [22 favorites]


Overheard on the House floor: "Edna? Who the hell is Edna? I'm not voting for her, that's for damned sure."
posted by NedKoppel at 3:00 PM on November 7, 2013


They're so predictably reactionary that they'll shoot themselves in the foot at the push of a button that the Dems control.

And then, when it blows up in their face, pitch fits about the trap that the tricksy Kenyan set for them (see Fluke, Sandra and Shutdown, Blame for).

These two men worked harder than anyone I know to rally their friends and raise money for the election and reelection of Obama because of their utter disgust at the social conservatism and outright bigotry of the current GOP. When you're losing lifetime-loyal people like them, there's a serious leadership problem in the party.

I had the same realization, too, when my ex mentioned that his lifelong Republican parents were hosting Obama fundraisers at their house. Evidently they were RINOs for believing in science (his dad's a biomedical researcher).
posted by scody at 3:09 PM on November 7, 2013 [2 favorites]




This is progress. I hope the momentum continues.
posted by arcticseal at 3:11 PM on November 7, 2013


So wait, a law that protects gay workers is bad because it will "cost American jobs"? Does he even try to make sense before he crawls into his bottle these days?

It makes "sense" once you think about what is left unsaid.

The basic idea is that (under ENDA) discrimination lawsuits would increase against religious businesses that currently discriminate on the basis of sexual orientation.

When Boehner says it will cost American jobs, he means that financial penalties to religious extremists will affect their ability to keep discriminating freely, which will affect their ability to hire those they don't discriminate against.

Being able to sue the KKK, for instance, has made it more difficult for them to operate, so right-wing opposition makes sense within the constrained logic that their representatives need to operate.
posted by Blazecock Pileon at 3:26 PM on November 7, 2013 [4 favorites]


At-will employment means you can be easily fired. The statutory exceptions such as ENDA, the Civil Rights Act of 1964 etc. merely mean that an employer who is actually guilty of discrimination need only cite - literally - any other reason to terminate any individual employee; per the Supreme Court of California
[A]n employer may terminate its employees at will, for any or no reason ... the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment ... The mere existence of an employment relationship affords no expectation, protectable by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms.
The ADA is the only example where it is easy to prove categorical discrimination. A lack of wheelchair ramps or braille in the elevator or acessable stalls in the restroom are enough evidence.

At-will employment makes it so that it is a trivial matter for corporations to evade laws intended to combat discrimination on the basis of race, color, sex, nationality, religion or age.
posted by vapidave at 3:26 PM on November 7, 2013 [2 favorites]


I'd be in favor off passing ENDA without the gender identity part just because I think the civil unions legislation went a long way towards convincing people that the sky wasn't going to fall if they approved gay marriage, and that small increments are better than no progress at all. Or if it'd pass on gender identity but not on sexual orientation, by all means, do that. But I say that only because, honestly? I don't really feel like once you get to the House, the problem is going to improve if we take one part out. We're not dealing with some people who mostly think we're okay and are just worried about being pushy, we're dealing with people who still haven't all come around to women or black people in the professional workplace and would probably all happily vote for a law restricting employment to straight white Christian men if it came up. They'd call it the Full Employment of Everyone Who Matters Act of 20xx or something.

Which is terrible, but on the up side it means that it's an easier sell to just go for it, because people are a bit more caught up in not being stuck on the side that includes all the guys who'd be happier with FEEWMA. So maybe in a way having some really crazy opposition is a good thing? Silver linings? Maybe?

It's going to be a little weird once we get past this spot in history and we actually start having substantive discussions about what changes to make and when and how again, instead of just "this is inhumane and uncivilized", "NUH-UH SHUT UP I HATE YOU."
posted by Sequence at 3:26 PM on November 7, 2013


I'd be in favor off passing ENDA without the gender identity part just because I think the civil unions legislation went a long way towards convincing people that the sky wasn't going to fall if they approved gay marriage, and that small increments are better than no progress at all.

The problem with that, of course, is that many groups helping draft this legislation, or who are lobbying for protections, are LGBT groups. And you cannot very well throw a part of your own population under the bus and say, "Oh well, we'll work hard for you next time."
posted by roomthreeseventeen at 3:31 PM on November 7, 2013 [4 favorites]


Even if ENDA passed, it would still be symbolic -- it's all too easy for employers to create a plausibly deniable level of hostility and then fire LGBT workers for being unable to function. But that's the thing about symbols: they mean something, and they can change minds. Symbols like ENDA communicate that this kind of discrimination isn't okay. Every little bit helps create a better world.
posted by jiawen at 3:40 PM on November 7, 2013 [4 favorites]


I honestly had no idea that it was legal to discriminate in the US on the basis of sexual orientation. Now I have to reconsider the nuances of each instance of macho posturing, both subtle and gross, that I observed while working in New York offices. You can be fired for being gay? It's an at-will state anyway, but considering the progress towards marriage equality I thought legal discrimination had been addressed years ago.
posted by ceribus peribus at 3:41 PM on November 7, 2013


The problem with that, of course, is that many groups helping draft this legislation, or who are lobbying for protections, are LGBT groups. And you cannot very well throw a part of your own population under the bus and say, "Oh well, we'll work hard for you next time."

Of course you can -- groups make those tactical decisions all of the time, sometimes wisely and sometimes cowardly.

But in this case I think it's the right move to keep the trans part in. For one, I don't think the House would be any more likely to pass it without that aspect, and for another this very clearly sends an unmistakable message about how ordinary and mainstream these rights are. Sure, the House can block this particular piece of legislation, but if the bill can pass the Senate with this kind of margin the future prognosis is pretty clear. So keeping everything in this bill was the right option.
posted by Dip Flash at 3:42 PM on November 7, 2013 [1 favorite]


zombieflanders: "Apart from the fact that it needs a simple up-or-down vote, it's productive in that it reminds Americans that modern conservatism is essentially a version of the Confederacy that hates more people in more places, and has chosen to declare a new Civil War in the legislature and the judiciary instead of the battlefield."

So about as productive and theatrical as voting to repeal Obama care
posted by Blasdelb at 3:43 PM on November 7, 2013


The problem with that, of course, is that many groups helping draft this legislation, or who are lobbying for protections, are LGBT groups. And you cannot very well throw a part of your own population under the bus and say, "Oh well, we'll work hard for you next time."

We tried that the last time around. Still didn't work. How many times should we throw people under a bus?
posted by rtha at 3:46 PM on November 7, 2013 [7 favorites]


ceribus peribus, thanks for saying that. I sometimes wonder why I have to keep mentioning ENDA as a priority, or if people are sick of hearing me mention it. But then someone realizes that it's still legal to fire people for gender identity or orientation and I'm reminded why i do it.

And remember: it's not just about orientation! Gender identity is just as important.
posted by jiawen at 3:49 PM on November 7, 2013


lol trans people got thrown under the bus last time ENDA came up and it didn't pass then, and i honestly find this "nah it's cool just throw trans people under the bus and promise we'll come back to them later" idea, and the acceptance people have toward it as if it's a totally cool idea that isn't hateful toward trans people, really really gross
posted by titus n. owl at 3:54 PM on November 7, 2013 [26 favorites]


So about as productive and theatrical as voting to repeal Obama care

No.

Obamacare repeal: majority of House (exists), 60+/100 (does not exist) in Senate via parliamentary rules

ENDA: 60+/100 in Senate (exists), majority of House (probably exists) but held up on procedural grounds for the imaginary "Hastert" rule
posted by zombieflanders at 3:55 PM on November 7, 2013


vapidave, it doesn't quite work that way with at will employment. It's not sufficient for an employer just to give a made up, neutral reason for terminating an employee who belongs to a protected category. If an employer can't provide this neutral reason, they lose. If they can, the employee still prevails if they show the reason was more likely than not a sham reason that is pretext for the real discriminatory reason. In fact, under Title VII, an employee need not prove that discriminatory animus was the only reason for the termination-it's sufficient to show that it was a substantial factor, even if there were also other non-discriminatory reasons.

There are no doubt occasions when an employer does have a secret discriminatory motivation and a terminated employee cannot meet their burden of proof-but it's not the case that employers can just terminate people of a protected status for discriminatory reasons and get away with it if they merely claim some other reason instead.
posted by MoonOrb at 3:58 PM on November 7, 2013 [1 favorite]


Speaker Boehner said that he "believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs" and that these protections are covered by existing law.

That last bit is infuriating. Boehner is regurgitating the usual tired, focus-group-tested Republican bullshit here, of course, but he knows damn well these protections are not "covered by existing law." That's a flat-out lie calculated to reinforce a wide misperception about these basic civil rights, and Boehner's repetition of it is low even for him.
posted by Gelatin at 4:08 PM on November 7, 2013 [1 favorite]


Ugh, I hadn't realized how many districts had become safe seats / landslide districts. This is a little disturbing. see also
posted by BrotherCaine at 4:31 PM on November 7, 2013


Obamacare repeal: majority of House (exists), 60+/100 (does not exist) in Senate via parliamentary rules

True. Plus, the law is (unofficially) named after the fellow currently holding the veto pen, who would definitely use it on a bill repealing his most important policy achievement.

But more importantly, the Senate has passed ENDA one time, not fifty. It's useful to take the ENDA vote once to show that it can pass with a large bipartisan majority including unanimous Democratic support. It wouldn't be so useful to repeat the exercise 49 more times.
posted by burden at 4:48 PM on November 7, 2013


These two men worked harder than anyone I know to rally their friends and raise money for the election and reelection of Obama because of their utter disgust at the social conservatism and outright bigotry of the current GOP.

The fact that Obama's basically an Eisenhower Republican (complete with opposition from a resurgent Goldwater conservatism) may have been a factor too, perhaps?
posted by Gelatin at 4:52 PM on November 7, 2013 [1 favorite]


Next up...Non Discrimination Against People Who Don't Like Cilantro!
posted by spicynuts at 12:54 PM on November 7 [+] [!]


There is a genetic cause for people who think Cilantro tastes like soap. Hopefully soon we can detect this abnormality in the womb and begin a rehabilitation program that will allow these 'people' to interact with society in a limited fashion.
posted by kzin602 at 4:56 PM on November 7, 2013 [2 favorites]


Thanks for the further explanation MoonOrb. I'll not disagree about the law as written but I'll note that "If an employer can't provide this neutral reason, they lose." is a pretty big if. We have all been late for work a few times, for example. That and the cost of litigating such matters is beyond the likely reward gained from litigation. I've been employed pretty much continuously for 33 years in companies whose size ranged from a few employees to 30,000 in my division and my experience has been that if they want you gone you're gone. I've seen people fired for all sorts of reasons - I've yet to see anyone fired without management providing themselves legal cover.

No corporation is going to have a written policy advocating discrimination and this is where laws such as ENDA miss their mark and at-will employment laws provide an easy defense. Corporations have become very adept at protecting themselves from litigation. Even in cases where discrimination is self-evident as in Dukes v. Walmart, the corporation prevails. Discrimination is pernicious and ultimately occurs on the local level whereas laws such as ENDA, the Equal Pay Act of 1963, the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967 are ineffective in that they attempt to address these matters at the corporate level.

I don't know the solution. I'm glad for laws like EDNA for their symbolic value as indicated by jiawen above. I don't have high hopes that there will be a dramatic change as a result though.
posted by vapidave at 5:03 PM on November 7, 2013


The last time that either house voted on any version of ENDA (I think) was in 2007; that bill, which as the poster noted did not include protections for transgender people, passed the House (then controlled by Democrats) by a vote of 235-184. 25 of 233 Democrats (11%) voted against the bill - most of these were conservative Democrats, but a few cast votes against the bill because it lacked protection for transgender people. 35 of 200 Republicans (17.5%) voted for it.

I think the fact that that 100% of Democrats and 22% of Republicans supported an inclusive ENDA is worth celebrating.
posted by burden at 5:14 PM on November 7, 2013


That may be the case in at-will states, vapidave, but bigoted employers still seem to fuck up and explicitly fire (or refuse to serve) people for illegal reasons a few times a year, and it's nice to see them get smacked down.

Also I may as well note that Obama could issue an executive order applying such a nondiscrimination policy to federal contractors any time he wanted to. He apparently doesn't want to.
posted by Corinth at 5:20 PM on November 7, 2013 [2 favorites]


Obama acts on perceived political expediency on these issues. He spent the bulk of his first term holding the bigoted position that gay marriage should not be legal. Even so, he has made more gains on these issues than any other President and his views have evolved so it's best to continue to urge him on to more action rather than assume he won't act.
posted by Drinky Die at 5:32 PM on November 7, 2013


I honestly had no idea that it was legal to discriminate in the US on the basis of sexual orientation. Now I have to reconsider the nuances of each instance of macho posturing, both subtle and gross, that I observed while working in New York offices. You can be fired for being gay? It's an at-will state anyway, but considering the progress towards marriage equality I thought legal discrimination had been addressed years ago.

Many individual states (including New York) ban employment discrimination based on sexual orientation; many more also ban discrimination based on gender identity. This would make it federal.
posted by vogon_poet at 5:37 PM on November 7, 2013 [1 favorite]


Ugh, I hadn't realized how many districts had become safe seats / landslide districts. This is a little disturbing.

This especially is interesting. The GOP has 5 seats over the Dems in swing states, but there are more Dems in GOP areas than the reverse. They also seem more motivated in their own areas. But overall this looks pretty close to be honest.
posted by Marisa Stole the Precious Thing at 5:53 PM on November 7, 2013


small increments are better than no progress at all.

70% of Americans think it should be illegal to discriminate against gay people, but 90% of Americans think that it is already illegal.

The ENDA almost seems less a case of progress than of fixing a typo that is erroneously making the letter of the law differ from the rules that we already agree are the law :-)
posted by anonymisc at 6:08 PM on November 7, 2013


And as usual, Huckleberry Closetcase votes against his own preference. Then again, that coward has to face a primary in 2014 so it figures. As much as I wish someone would out him I know it would only result in someone worse running in his place. Unless of course it were an October surprise...
posted by Ber at 6:11 PM on November 7, 2013


Many individual states (including New York) ban employment discrimination based on sexual orientation; many more also ban discrimination based on gender identity.
This is backwards, right? Or a typo? Because, scroll back up to the link I posted: 26%* of trans people in the US have been fired explicitly for being trans, 90% harassed or abused at work, 71% deal with workplace discrimination by hiding their transition, 57% with delaying transition, etc. Protection of gender identity in the US workplace is minimal, nationwide.

* 2011 National Trangender Discrimination Survey. Which I know I always trot out, but the numbers there are pretty eye-opening. It is worth looking at.
posted by byanyothername at 6:49 PM on November 7, 2013


Yeah, confused my sentence structure there. There is a set of states that ban anti-gay discrimination, and a subset of those ban discrimination on gender identity.
posted by vogon_poet at 8:19 PM on November 7, 2013


Drinky Die: "Pat Toomey (R-Pa.).

Wow, really? I guess for the first time ever I have to thank him for something. And continue to thank the voters of my state for tossing Rick Santorum out on his ass too.
"

Eh, it was a political move so that he could talk out of both sides of his face. Yes, it's good that he voted for it, but he also made it clear that he wouldn't continue his support for its passage without it including greater concessions for "religious freedom," i.e. church-affiliated employers.
posted by desuetude at 10:58 PM on November 7, 2013


Re Huckleberry Closetcase - not being personal. [Having lived in Iowa for 5 years these misconceptions bother me.] Fly over all you want from California to New York. Stop in Des Moines and get married if you like.

April 3, 2009 was when Iowa legalized same sex marriage - or domestic partnerships if that is the term you prefer. At that point neither California nor New York recognized either.

In 2004 I was living in Iowa and a man who I worked with sucessfully sued to have he and his male partner both listed as parents on the birth certificates of their 5 adopted children [The birth certificates used have one entry for "Mother" and one for "Father"] Bonus; they lived in a rural area and no one gave a shit.

Iowa and flyover states are frequently used as foils for fools.

Midwestern reserve properly ignores such idiocy.

And my grandparents had a dog named Huckleberry dammit.
posted by vapidave at 12:55 AM on November 8, 2013 [2 favorites]


Unless of course it were an October surprise...

Just be sure to do it AFTER the primary and before the general so that you're sure not to get Adolf von Tebagger as his replacement.
posted by The 10th Regiment of Foot at 6:13 AM on November 8, 2013


GOP’s intolerance trap: How ENDA fight explains all of U.S. politics
GOP leaders haven’t categorically refused to put the bill on the floor. Perhaps they will at some point. But what, then, will they say to Latinos and other immigrant groups, who want the same basic treatment?

The tension wouldn’t necessarily end there, either. In addition to immigration reform and ENDA, Democrats want bills pertaining to minority voting rights and equal pay for women on Boehner’s desk before election season. So far this Congress, Boehner has refused to break the Hastert Rule unless clear exigencies have required him to. But if the dam were to break, and he decided to put ENDA on the floor, what argument would he make for not getting out of the way entirely. By what principle would he deny some of these constituencies votes but not others?

It would be difficult for him to sustain such arbitrariness. But it’s even harder to envision the lower chamber suddenly becoming a clearinghouse for major pieces of progressive legislation. At least not while Boehner’s obsessively guarding his own hide. It’s much easier to imagine him keeping these bills bottled up and letting voters decide.

That’s immensely frustrating for liberals. But it should be a reminder to them that all elections — even midterms — matter tremendously. This one could be a referendum on the proposition that the United States is quickly becoming a more tolerant country, and the Republican party isn’t keeping pace.
posted by zombieflanders at 6:47 AM on November 8, 2013


does this mean that men can finally work at Hooters?
posted by rattleandhum at 7:44 AM on November 8, 2013


Sure, if they look good in hot pants and pantyhose!*

Note: Do not google an image for "man in hooters uniform"
posted by The 10th Regiment of Foot at 7:46 AM on November 8, 2013 [1 favorite]


No. the EEOC ruled that for federal employees only. It is not citable precedent for private or non-federal employees.

Macy has been used as precedent in more than a few private lawsuits and settlements in the past year and a half.


Citable was the wrong word. It isn't controlling. While I think its holding is correct, it isn't the giant win for everyone it is often reported as.
posted by Ironmouth at 9:40 AM on November 8, 2013


Eh, it was a political move so that he could talk out of both sides of his face. Yes, it's good that he voted for it, but he also made it clear that he wouldn't continue his support for its passage without it including greater concessions for "religious freedom," i.e. church-affiliated employers.

Well, he was trying to sell an amendment along those lines but ultimately he voted both for cloture and for passage of the bill without his amendment. It's a step in the right direction for a Republican Senator from a state that is doing very poorly on gay rights issues.
posted by Drinky Die at 10:53 AM on November 8, 2013


Drinky Die: "Well, he was trying to sell an amendment along those lines but ultimately he voted both for cloture and for passage of the bill without his amendment. It's a step in the right direction for a Republican Senator from a state that is doing very poorly on gay rights issues."

Oh, I agree, a step in the right direction. I live here in PA. Taking a small calculated risk to win some goodwill from "the liberals" is certainly not a strategy that most PA Republicans would ever consider these days; they're too busy honing their bluster for the the Hard-core Partisian Windbag Competition. So yes, props to Toomey for actually doing his job, but I'm not going to tongue-kiss him for it.
posted by desuetude at 12:04 PM on November 8, 2013


Oh yeah, don't get me wrong, I will be literally laughing when I help vote him out of office. But I do believe in thanking them when they do the right thing.
posted by Drinky Die at 2:52 PM on November 8, 2013


Elections matter:

McAuliffe: Order to Ban Sexual Orientation-Based Discrimination in Workplace
On his first day in office, Governor-elect Terry McAuliffe says he'll use his first executive order to ban discrimination in state workplaces based on sexual orientation.

The move is already drawing familiar criticism from the right. In doing this, McAuliffe is following in the footsteps of former Governor Tim Kaine, who signed the same executive order on his first day in office in 2006.

Now, heading into 2014, it looks like history may repeat itself.

Back in 2006, Delegate Bob Marshall - one of the most conservative voices in the Virginia legislature - called Kaine's executive order "unconstitutional," claiming he was trying to change public policy without approval from the General Assembly.

Then Attorney General Bob McDonnell agreed the action was unconstitutional. Now, eight years later, Delegate Marshall says McAuliffe’s plan is similarly flawed.

“He has no legal authority. This is not a good start, frankly. If Mr. McAuliffe thinks he can usurp powers of the legislature, he's courting a divorce before the honeymoon,” said Marshall.

"Clever phrases notwithstanding, there's not going to be anyone who will be able to legally challenge him on it," said Kaine.
posted by zombieflanders at 1:34 PM on November 11, 2013


Majority of Americans in Every Congressional District Support Law to Protect Against Sexual Orientation Discrimination at Work
A majority of Americans in every U.S. congressional district support laws that protect against employment discrimination on the basis of sexual orientation, such as the proposed Employment Non-Discrimination Act (ENDA) passed last week by the U.S. Senate, according to new research from UCLA’s Williams Institute. (While ENDA would also protect against discrimination on the basis of gender identity, relevant public opinion data was not available.)
posted by zombieflanders at 1:42 PM on November 20, 2013 [1 favorite]


That's pretty rad. I had assumed that, like a lot of issues, there was broad public support hampered in Congress by too many safe, solidly Republican House districts.
posted by Corinth at 12:43 PM on November 21, 2013


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