November 1, 2013 2:20PM

Against ENDA

The U.S. Senate is expected to vote Monday on the Employment Non‐​Discrimination Act (ENDA), a bill to “prohibit employment discrimination on the basis of sexual orientation or gender identity” that’s been proposed in one form or another for nearly 40 years. It will be a symbolic vote at many different levels. First, the bill stands little chance of passage in the GOP‐​controlled House; the point of giving it prolonged attention now is more to inflict political damage on Republicans for resisting a popular measure than to get a bill on President Obama’s desk. Second, it seeks to ratify (and take political credit for) a social change that has already occurred through nearly all the country, including even very conservative locales. Most larger employers are now on record with policies against discriminating against gay employees, and even smaller employers without formal policies mostly hew to the same path in practice, for many good reasons that include not wanting to lose the talents of employees from any demographic. 

ENDA is a less salient bill than it looks in a second way as well; statistics from the many states and municipalities that have passed similar bills (“mini‐​ENDAs”) indicate that they do not serve in practice as a basis for litigation as often as one might expect. This may arise from the simple circumstance that most employees with other options prefer to move on rather than sue when an employment relationship turns unsatisfactory, all the more so if suing might require rehashing details of their personal life in a grueling, protracted, and public process. The forbidden group categories that tend more to drive HR managers crazy are things like age, disability, and criminal record consideration, where the law regularly tries to forbid behavior that in fact is perfectly rational for employers to engage in. 

On a level of sheer entertainment, the bill has certainly furnished more than one way for some conservatives and Republicans to make themselves appear ridiculous. Some GOP supporters in Congress, for example, seem to be tempted by ENDA as an “easy,” crowd‐​pleasing vote to show they’re not always on the anti‐​gay side. But consider the implication: lawmakers who take this path come across as willing to sacrifice the freedom of private actors—as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed—even as they go to the mat to preserve disparate treatment by the government itself in the recognition of family relationships. Sorry, but that’s upside‐​down. A classical liberal stance can reasonably ask the government itself to behave neutrally among different citizens with their differing values and aspirations, but should not attempt to enforce neutrality on private citizens themselves. 

One may also smile to see some implacable Culture War conservatives suddenly emerge as “Libertarians for a Day” when it comes to adding gays to the list of protected categories. Race aside, few among them have previously crusaded against the earlier inclusion of categories like age, marital status, pregnancy, or, say, religious affiliation. 

And yet at some point we do need to stop adding new groups to the parade—either that, or see freedom of association turn into a presumption of something else. At what point do we say no to future demands that protected‐​group status be accorded to employees based on political and controversial systems of belief, physical appearance (the “looksism” issue), family responsibilities, résumé gaps because of unemployment or other reasons, or use of lawful products or engagement in lawful activities in off hours—to name just a few of the areas that in fact have been the subject of real‐​world agitation in recent years? If we say yes to all, we introduce a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

That’s reason enough to oppose ENDA, as I see it.