Q: What's ENDA?
A: It's the "Employment Non-Discrimination Act." It's a bill currently before Congress.
Q: What would ENDA do?
A: Extend the protections of title VII to gays, transgendered people and the disabled.
Q: What's title VII?
A: Title VII was the "Equal Pay Act of 1963." It has been subsequently amended, and mostly in liberal directions by the Civil Rights Act of 1991 and the Lily Ledbetter Fair Pay Act of 2009. Here's what the US Code looks like now.
Q: What does it say?
A: Very briefly, it says that you cannot fire, refuse to hire, or generally mistreat employees because of their gender.
Q: Bitchin'. I'm a woman and I've always wanted to be a Catholic priest. I'll start calling lawyers.
A. Not so fast...er...Sister. Religious institutions are exempted.
Q: But what about a Catholic-owned bookstore?
A: They aren't exempted at all. They cannot refuse to hire you based on your gender. Or your not being a Catholic, which would legally get in the way of the priest thing, too, by the way. Or because you're black. Or because you're French.
Q: We even have to hire the French?
A: If they are the most qualified person for the job. Sucks, don't it?
Q: What will happen if ENDA passes?
A: As far as I can tell, it will simply add sexual orientation, gender identity and disability to the list of protected traits. The church won't have to hire gay people, but the bookstore still will if they are the most qualified for the job. Also, it will not allow for "disparate impact" claims, though frankly I don't really see those being relevant to sexuality or gender identity. My guess is that it has some implications for the disability part, though I will have to think that one through.
Q: What's a disparate impact claim?
A: It's a claim that a hiring practice not directly mentioning a protected class still functionally excludes many members of a protected class. For example, if you have a company rule that all employees have to be at least 5"8' then you will exclude many, many women and relatively few men. The Ricci case made famous in the Sotomayor hearings (the one about the firefighter exam that few black people passed) would be an example. The more common firefighter disparate impact case is when firefighters require people to have a high amount of upper body strength, higher than most women have. That's a fun one because it really makes sense to have that.
Q: Can you get fired for "acting Gay"?
A: Oddly enough, that is pretty much already protected as long as you can define "acting gay" as "acting like the opposite gender." Back in 1989, Price Waterhouse denied a woman a partnership, stating that she wasn't "feminine enough" and the SCOTUS made it illegal to discriminate against someone for "not conforming to gender stereotyping." Here's an example of that ruling protecting a flamboyant gay hairdresser.
Q: Do you think "not feminine enough" was code for "lesbian" in that case?
A: I don't know, the SCOTUS didn't seem to take it that way, but I know at least one hairdresser who was protected anyway because of the way they wrote the ruling.
Q: Anyway, what does Title VII mean for religious freedom?
A: It means that Congress has not defined "the freedom to hire, fire and mistreat people based on your religion" as part of religious freedom since at least 1968.
Q: So people who are complaining that ENDA will reduce religious freedom should not be believed?
A: I don't see how anything they are saying is accurate.
Q: Will this get rid of "Don't ask, don't tell"?
A: Nope. The military is exempted.
Q: This is interesting stuff. I want to read more about it.
A: Well, this post is pretty cool.
ADDITIONAL QUESTIONS I WAS ASKED IN THE COMMENTS:
Q: Does it apply to Congress? Many of these kinds of laws don't.
A: As for members of congress themselves, I don't think a claim that one wasn't ELECTED because of a protected trait would fly with the courts.
As for congressional staffers, they are federal employees as far as I know, and sexual orientation has been protected since the Clinton administration and Obama has extended that to gender identity.
As far as people with disabilities are concerned, they are covered by the ADA and the Sections 501 and 505 of the Rehabilitation Act of 1973.
Q: Do you understand what the term "gender identity" means? The definition seems very broad. Are the only possible identities "male" and "female"? How about, "drag queen", "all of the above", or "depends on what time of day we are talking about"?
I was struck by the contrast with the definition of "sexual orientation", which says that you have to be gay, straight, or bi for the law to matter.
"Gender identity" seems much more open ended. If "all of the above" isn't an acceptable identity, why not? And if "all of the above" is an acceptable answer, how does one make sense of the facilities clauses, which seem to assume only two possible "gender identities". (Edited for length, full version is in the comments.)
A: The non-binary genders thing is an excellent question, albeit one that's a little rudely phrased at the beginning. My impression is that a large number of local areas have non-discrimination laws that include transgender folks. I don't recall that the bathroom issue has resulted in a need for transgender bathrooms which is not to say that they don't effectively exist all over the place labeled as "family bathrooms" and usually used by parents and opposite gender children.
Indeed, as I have a husband, I have three bathrooms in my very own house that are not limited to one gender and we have considered putting in a fourth with a Japanese soaking tub.
As for public areas, due to the existence of stalls, I don't care and am not sure what non-discriminatory reason other people have for caring who else is in the bathroom with them, what their philosophy of gender is and least of all what their physical equipment is.
Seems both polite and practical not to speculate on such things.