On ENDA: Interview with Laura Durso (Center For American Progress)

With the House of Representatives reconvening on December 2, 2013 and adjourning for the year on December 13, 2013 there does not remain much time wherein The Employment Non-Discrimination Act can be brought forth for a vote. Speaker Boehner believes that ENDA will “increase frivolous litigation and cost American jobs, especially small business jobs.”

While the Speaker makes such statements, the facts tell us that as many as 17% of gay, lesbian, and bisexual workers have reported being passed over for a job or fired because of their sexual orientation, while 26% percent of transgender people report having been fired from their job because of their gender identity (Center for American Progress).

Ken Charles, vice president of global diversity and inclusion for General Mills, states, “Would any of us be fully engaged, productive and effective if we feared losing our job, being denied a promotion, being harassed or even bullied on the job? Many qualified, hardworking Americans lack these basic protections under the law—simply because they are GLBT [sic]. That’s not right.”

Fortune 500 companies are leading the way on company-wide policies that protect their employees from discrimination on the basis of sexual orientation and gender identity, but small businesses employ 8 million people in the US, according to the 2010 US Census.

On the discussion of the importance of the Employment Non-Discrimination Act, I had the opportunity to sit down and discuss ENDA with Laura Durso, the Director of the LGBT Research and Communications Project at the Center for American Progress.

Check out the interview here.

ENDA has existed since 1994, with similar legislation existing as far back as 1974, why do you think it is that legislators dating back to the 1970s are against the idea of employment equality regardless of sexual orientation and/or gender identity?

Yeah, this is a big question. I think one answer we might consider is that legislators don’t know who LGBT people are and I think that’s potentially a reason why this issue has had trouble gaining traction. Although it’s interesting if you think, and if you’ve done your research, and you know that there is a bill in 1974 which is only a year after homosexuality is removed from the DSM, right? So we’re talking about on the heels of this major shift in the way people thought about who, at least, gay people were. We didn’t see this legislation getting approved in Congress. I think that’s an interesting notion of how far we actually had come at that point in time. And then I think we have a question, “Why haven’t we gone any farther since then?” I think it’s this real lack of understanding about LGBT lives and, in particular, an understanding of trans* people’s lives. So we only lost by one vote in the House in 2007. I think in many ways public opinion has been ahead of the legislative process on this. But again, I think it’s just a lack of understanding and what this process has done.

Should the Gender and/or Sexuality Minority (GSM) community trust in the legislative process? If so, why?

I think, while I understand and sympathize with everyone’s frustrations and there’ve been people working very hard at this for a long time, I think one of the benefits of going through such a legislative process for all of its frustrations is that it is an opportunity to educate people and I think that’s what we’ve seen. It’s the people’s body, so its an opportunity for real people to go and talk to their legislators and educate them about their lives and why these protections are still needed. That’s why I trust in the process a little bit, at least a little bit.

John Boehnor is concerned that a passage of ENDA might lead to frivolous litigation, is this a valid concern?

I’m going to first say that I am not a lawyer myself and so in terms of sort of the letter of the law, it is harder for me to speak to that, but what I would say is based on both empirical research and experiences that we have in states that have already implemented these types of protections, it just shows that this is not a real valid concern that business comply with the law, that we don’t see an increase in complaints in these jurisdictions that have such protections and I think there’s a much stronger case to be made that the business community supports ENDA and that businesses, large and small, know that having LGBT* workplace protections is better for their bottom line. Because it makes LGBT* workers happier and healthier and more productive and that’s a good thing for business.

Even if it is/were a valid concern, is that reason enough to hold up the legislative process?

Well again, I’m not a lawyer and I’m certainly not a legislator or a parliamentarian, so it’s hard to say. I don’t think it’s valid and so I don’t think it ought to hold up the legislative process.

The Joint Economic Committee released a study that estimates that American businesses lose $64 billion annually because of turnover that comes from discriminating against LGBT workers. With numbers like this, and The Center for American Progress’s own numbers, how can House leaders justify obstructing this vote?

Well I can’t really speak to their rationale, or why they would not bring ENDA to a vote, but I think what the study, and it’s a study that comes from our work but also great work that’s been done at the William’s Institute. And I should say that I also have worked at the William’s Institute and I’ve done some work in this area, and I think that report really squares with the research that exists in this issue, and really squares also with the support that we see from big business and small business owners who see no problem with protecting their LGBT* workers. And I can’t really say why they would think it’s okay to obstruct a vote, but I think the study is totally consistent with the rest of the research literature.

Here is a quote from House Majority Leader Eric Cantor’s spokesperson:

“The bill is currently not scheduled in the House. I hope Majority Leader Reid soon addresses the dozens of House-passed bills that have been ignored in the Senate that create jobs, improve education and create opportunity while Americans struggle to find a good-paying job.”

Here the House Majority Leader is clearly making this a partisan issue. The American media and the dominant parties are constantly reminding us of things we cannot do because of partisan gridlock, how do we convince House leaders to lead on this issue?

It’s something that majority of Americans  (and we’re talking Democrats, Republicans, Independents, people from all major religious groups, business owners) just the majority of the public is in support of  this, and so I think in some ways it is not a partisan issue and I think it is important to reiterate that. I think in terms of, “How do we convince folks to lead?” I think an important thing is not to just say that, “Look this is something that everybody agrees should be done.” But I think that it’s really very consistent with their values, looking at [Representative] Cantor’s quote about jobs, education, opportunity, finding a good paying job, you know, ENDA fits squarely within those values and objectives. Having workplace protections is about freedom of opportunity for LGBT people, it’s about finding a good paying job, and keeping that job, and contributing to a productive economy. So I think that’s one way of thinking about talking about our shared values.

Religious exemptions, whether or not to include protections for Transgender workers, are these concerns the average American might have about this bill, or is it simply political bickering to prolong a necessary vote?

While I think it’s perfectly valid for people to have questions about who trans* people are and why these protections are so needed, I think what public opinion polling would tell us that an inclusive ENDA is what the public is behind and so I think that’s true. People know that fair is fair and so the bill should be inclusive. The religious exemption question is an interesting one. I think particularly playing out with the issue of marriage equality nationwide, you know that the data tells that folks are fairly torn when it comes to supporting this freedom to marry, but then also recognizing that everyone has the freedom of expression and the freedom to worship. But again I come back to, I think, people understand that it’s important to have fairness in the workplace, that people should be judged based on their work ethic and the quality of their work and not on personal characteristics. So I think while these terms are sort of floated around and we’re “debating” these issues, I think at the end of the day, everyone understands the need for inclusive workplace protections that don’t change the roles and the protections for the religious community, and I think that’s what ENDA does.

And as with marriage, there’s a difference between the federal (legal) marriage and a religious ceremony; the fight, in my opinion, should be for the federal or the state legal equality and then people can go to their own individual religions and have that fight there, but as a law, as a legal standpoint, both ENDA and gay marriage, in a public sector, or even in a private sector but non-religious hiring places (if it’s not a church, or a religious institution) I don’t think it’s infringing upon religious rights.

We do think that this is, ENDA, what is essentially a compromise that respects people’s values.

If John Boehnor or Eric Cantor called you to discuss this issue, what would you tell them?

American people: listen to the heads of the majority of our Fortune 500 companies, listen to the small business owners who want to protect their workers and schedule a vote. I think that’s the first thing I might say and that I would love to sit down with them and talk with them about the crucial need for these types of protections and think of this as an opportunity to talk about who LGBT* people are and what their experiences in the workplace are like and why we need a federal response to the issue of workplace discrimination.

To all the GSM Americans out there who face the endless worrying about discrimination, do you have any words for them as they sign petitions and write letters in support of their right to work in a non-biased workforce?

I think I would say on the flipside, “Thank you for all of the efforts. It is not necessarily safe, it is not necessarily easy to make those phone calls, sign petitions, write letters and I’m grateful for people coming forward and sharing their stories and doing the really crucial work that’s needed to get these things passed and I would share that the public is really with you that again the majority of Americans believe in these protections and I think that can’t be overstated. This isn’t a fringe idea, this is something that goes right to the heart of American values and it helps to know that lots of other people are standing behind you and supporting you and believe in the same thing you believe in, and I think even on the smaller level, you know if it’s safe for people to do so, they should check with their local governments, they could check with their own workplaces and see what kinds of policies are maybe in place or see if they can work to get more LGBT*-inclusive workplace policies even at the very local level. There’s evidence that supportive workplace climates in various companies, they positively impact LGBT* workers, and so even in the very small level, that one person can make a really big change within an office environment and so I might say that as well.

I was discussing it with my friend and he brought up the good point that if we can’t get jobs because we don’t have the protection, how are we going to be able to afford to bring forward ‘frivolous’ litigation?

I think it’s hard to define what ‘frivolous’ means. We have experience with sex and race protection, could they say that those complaints are frivolous? Whatever number of complaints were made over time with those. It’s kind of a, “Who’s to say what’s frivolous not?” thing.

On Leadership and Compromise

Compromise sometimes has that dirty ring to it. But I think in this case we’re not just talking about giving something up on both sides and then everybody kind of agrees but isn’t totally happy. Again, I think that a bill like ENDA speaks to a shared value, it’s not just that we’re trying to meet in the middle and don’t agree, I think when you ask people, Is it okay to fire people for being gay they say, “No.” and I think that is a shared value. Not just that we have to hold our noses and take a vote.

The Employment Non-Discrimination Act is not currently up for a vote in the House of Representatives. You can contact your Representative, as well as the leaders of the House, and encourage them to bring this bill to the floor for debate. The House adjourns for the year on December 13, 2013 so time is running out for action on this important piece of legislation.

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