Workplace Discrimination and a Free Society

Lately, it seems as though everyone thinks he is being discriminated against in the workplace.

According to a national survey of employed American adults who were asked about their experiences with religious discrimination at work, “What American Workers Really Think about Religion: Tanenbaum’s 2013 Survey of American Workers and Religion,”

• More than half of employed Americans agree that there is a lot of discrimination against Muslims in the United States;
• One in three American workers has actually experienced or personally seen incidents of religious bias when he goes to work;
• Six in ten white evangelical Protestants agree that discrimination against Christians has become as big a problem as discrimination against other religious minorities; and
• 60% of atheists believe that people look down on their beliefs, as do nearly one-third of non-Christian religious workers (31%) and white evangelical Protestants (32%).

The survey was conducted by the Tanenbaum Center for Interreligious Understanding and the Public Religion Research Institute.

But it’s not just religious discrimination that people say is taking place in the workplace. The latest form of alleged discrimination is discrimination on the basis of sexual orientation or gender identity. In fact, the U.S. Senate has just passed a bill to address that very thing.

The Employment Non-Discrimination Act of 2013 (S.815), a bill “to prohibit employment discrimination on the basis of sexual orientation or gender identity,” recently passed the Senate by a vote of 64-32. Ten Republicans voted for the bill. Three Republicans and one Democrat did not vote. The bill is not expected to pass the Republican-controlled House of Representatives.

The Employment Non-Discrimination Act (ENDA), not to be confused with ADEA, the Age Discrimination in Employment Act, forbids an employer with 15 or more employees

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.

However, the bill is careful to add that it neither requires nor permits employers to grant “preferential treatment” to “any individual or to any group because of the actual or perceived sexual orientation or gender identity” or to adopt “a quota on the basis of actual or perceived sexual orientation or gender identity.”

But of course, even though the Civil Rights Act of 1964 said basically the same thing, it led both to Affirmative Action policies and to quota systems so that employers could demonstrate to the government that they were not practicing discrimination.

ENDA also contains a religious exemption: “This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.”

About half of the 50 states and the District of Columbia already prohibit discrimination on the basis of sexual orientation, with many of those states also prohibiting employment discrimination on the basis of gender identity.

The origins of ENDA can be traced back to the Equality Act of 1974, which sought to ban discrimination against gays and lesbians. It died in committee in the House and was never introduced in the Senate.

ENDA itself was actually first introduced in Congress in 1994 by Rep. Gerry Studds (1937–2006) of Massachusetts, the first openly gay member of Congress. It would have made it illegal for employers to discriminate on the basis of a person’s actual or perceived sexual orientation. House and Senate versions died in committee. A version of ENDA has been introduced in almost every session of Congress since then. Discrimination based on gender identity was added in 2007.

It is no surprise that Lesbian, Gay, Bisexual, and Transgender (LGBT) groups are hailing the Senate’s passage of ENDA. And according to a “Monthly Religion News Survey” by the Public Religion Research Institute, “Roughly three-quarters (73%) of Americans favor laws that would protect gay and lesbian people from employment discrimination.”

Former Minnesota Republican senator Norm Coleman, now a lobbyist in support of ENDA, argues that his counterparts in the House should “unite” on the bill. Says Coleman, “We are the party of Lincoln. Our roots are in anti-discrimination.” This is an “economic issue.” “This is a right for someone to get a job, and to get a job based on their ability to do the job.”

Coleman faces an uphill battle in the House. A spokesman for House Speaker John Boehner said that “the Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small-business jobs.” A spokesman for Majority Leader Eric Cantor “confirmed that the House has no plans to take up ENDA.” The conservative Heritage Foundation is opposed to ENDA because “the legislation would severely undermine civil liberties, increase government interference in the labor market, and trample on religious liberty.”

Republican and conservative opposition to ENDA is inconsistent. They fully support federal civil rights laws that ban workplace discrimination in hiring, firing, compensation, assignment, classification, transfer, promotion, layoff, recall, recruitment, testing, training and apprenticeship programs, benefits, or retirement plans on the basis of race, color, religion, sex, national origin, age, pregnancy, martial status, disability, genetic information, birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.

Like Democrats and liberals, they would reason that everyone should be entitled to a job he is qualified for and able to perform regardless of his physical, national, cultural, or religious characteristics. No attempt was made during the Bush years, when conservative Republicans controlled both Houses of Congress, to abolish the Equal Employment Opportunity Commission (EEOC) or repeal any so-called civil rights laws.

Although Republican and conservative opposition to ENDA is often couched in economic terms, it is no secret that much of their opposition is politically motivated. The Tea Party and conservative elements in the Republican base view any anti-discrimination laws that relate to sexual orientation or gender identity as accommodating the LGBT lobby.

And then there are the inconsistencies in ENDA itself. Why the exemption for employers with fewer than 15 employees? Why the religious exemption? If workplace discrimination is bad, unfair, wrong, immoral, bigoted, racist, sexist, xenophobic, or homophobic, then it is still bad, unfair, wrong, immoral, bigoted, racist, sexist, xenophobic, or homophobic if a company has fewer than 15 employees or is a religious institution.

Libertarians alone are consistent here. ENDA should be opposed, not because it outlaws discrimination on the basis of sexual orientation or gender identity, but because it outlaws discrimination in the first place. In a free society everyone would have the right to discriminate against anyone for any reason.

To ban discrimination is to ban freedom of thought and freedom of association, not aggression or violence. In a free society everyone has the right to think whatever he wants to think about everyone else and to choose to associate or not associate with anyone on the basis of those thoughts. That includes employers and business owners. His opinions may be erroneous; his opinions may be illogical; his opinions may be irrational; his opinions may be based on stereotypes, prejudice, bigotry, or racism — but he is entitled to them. In a free society it couldn’t be any other way.

Those who object to a company’s hiring, promotion, pay, or benefit practices can seek employment elsewhere, protest the company’s policies, boycott the company, and try to persuade others to do likewise.

And of course, any business that practiced discrimination would have to pay a price in whatever negative consequences might come as a result of it: bad publicity, smaller labor pool, loss of market share, low employee morale, a decline in profits, et cetera.

None of that means that libertarians think discrimination is always a good thing. Indeed, they may deplore workplace discrimination as much as any liberal, conservative, progressive, or moderate and yet still vehemently oppose discrimination laws.

A free society is not free of discrimination, but a free society is free of discrimination laws.

Originally published at The Future of Freedom Foundation on December 16, 2013.