Tomorrow is the day that the Employment Non-Discrimination Act, or ENDA (S. 815), will come before the Senate. The premise behind the bill is to prohibit discrimination of hiring employees based on sexual orientation or gender identity. Much like with judging an individual based on skin color or religion, an employer who discriminates against a potential or current employee based on their sexual orientation or gender identity is committing a moral wrong. An employer should ultimately judge an employee based on their job performance. So why would I have a problem with a bill that prohibits such discrimination, aside from the fact that even if the Senate does pass it, there would be no way that the Republican-dominated House would allow for its passage?
In the past, I had to wonder about anti-discrimination laws. On the one hand, I believe that a proprietor should be able to run his business however he wants, even if he is going to be ignorant and bigoted in the process, much like he would be when firing a hard-working employee because of their sexual orientation. On the other hand, something needs to be done to help the LGBT community to make sure that they are given fair and equal treatment under the law. However, I have to be skeptical about the efficacy of anti-discrimination laws, especially considering how the government has handled affirmative action and the Americans with Disabilities Act (ADA).
For one, politics follows social change; it does not lead it. Societal changes take place from the ground-up in a gradual manner, and the gradualness was a part of the Civil Rights movement, the Women's Rights Movement, and the Gay Rights Movement. It takes time for LGBT members of society to come out. It takes time for people to become more supportive of LGBT rights and to realize that people who are LGBT are people, too.
Politicians pick up on civil rights only after it has gained traction and popularity, which is why only very recently has the Supreme Court tackled the issue, and why multiple states have recently legalized same-sex marriage. As a side note, it is amazing at the frequency with which government is actually the cause of the problem, such as when it legally defines marriage between a man and a woman.
Going off the thought of politics following social change, I have to wonder whether it is even necessary for Congress to legislate a social change which is already occurring. 87% of Fortune 500 companies already have such policies in place, as do over 50% of the top federal contractors. According to the Left-leaning Center for American Progress (CAP), seven out of ten small businesses already have anti-discrimination policies for sexual orientation in effect, as do six out of ten small businesses for gender identity discrimination. According to the Williams Institute, which is a think-tank focused on LGBT issues, the rate at which one is discriminated for their sexual orientation is 4 out of 10,000. Any discrimination is unfortunate, but a rate that is significantly less than one percent is a sign of true progress.
Freedom of association is vital for having a relatively free labor market. Mandating to an employer who he can and cannot fire creates a labor rigidity because, as Professor David Bernstein puts it, "there is no limit to the scope of anti-discrimination laws, because the definition of discrimination is almost infinitely malleable." The last thing we want is to make it as difficult to fire someone in this country as it is in France, which I can tell you is a bad thing for economic growth. As Nobel Prize-winning economist Gary Becker illustrated, a free market punishes those who decide to discriminate. Being concerned about the bottom line mitigates discrimination because an employer who wants to maximize profits, which in all honesty is a majority of employers, wants the best employee, regardless of race, religion, gender, or sexual orientation. ENDA is merely a reflection of how society already feels about workplace discrimination on the basis of sexual orientation or gender identity. Rather than perpetuate the fallacious idea that government can actually legislate acceptance, we should just let society progress towards even greater acceptance towards LGBT individuals while we allow bigoted entrepreneurs to learn the hard way by shooting themselves in the foot.