The cloture vote on the Employment Non-Discrimination Act (ENDA) Monday drew the support of seven GOP senators. Eight other Republicans did not vote.
It is remarkable that so few Republicans would agree with the overwhelming number of Americans who disapprove of workplace discrimination. In September, a poll showed 68 percent of voters supported a law like ENDA. Among Republicans, 56 did. Those numbers go to 88/84 percent approval for this statement: “Companies should hire and fire based solely on a person’s qualifications not quotas — gay and transgender employees should have an equal opportunity to everyone else.” A June poll conducted by Huffington Post and YouGov found 65 percent thought such discrimination was already illegal.
As The Fix pointed out, even in South Carolina attitudes are changing. Opposition to gay marriage has gone from 78 to 52 percent in seven years. And in Virginia, Republican Ken Cuccinelli II and the candidate for lieutenant governor, E.W. Jackson, are being hammered for their stances and rhetoric about gays. In short, even in socially conservative states, voters increasingly demand toleration of and respect for gay Americans. Among all groups, including Republicans, younger Americans increasingly support gay marriage. As for discrimination, politicians opposed to workforce protection find themselves grasping at straws to justify their position.
Yesterday, I made the case that protection for gay and transgender employees doesn’t set off a wave of litigation, citing California statistics. The evidence when you look at all states that offer protection for such employees is even more compelling. A GAO report dated July 31, 2013, recounts that its 2009 study “reported that 22 states had statutes explicitly prohibiting employment discrimination on the basis of basis of sexual orientation; we also reported that 13 states had statutes explicitly prohibiting employment discrimination on the basis of gender identity. In addition, we reported that, generally, the administrative complaint data reported by states at that time showed relatively few employment discrimination complaints based on sexual orientation and gender identity.” In its update, GAO found: “With respect to complaint data, consistent with what we reported in 2009, the administrative complaint data reported to us by states for 2007 through 2012 show relatively few employment discrimination complaints based on sexual orientation and gender identity.”
Taking the GAO data, I asked the Williams Institute at UCLA Law School to help Right Turn quantify this data. If you compare the collected data from the 22 states that prohibited sexual orientation discrimination you find that the percentage of such claims as compared to discrimination complaints as a whole went from 3.71 percent to 4.49 percent between 2007 to 2012. In absolute terms, the numbers nationwide went from 1540 to 2084, while state employment discrimination claims went from 41462 to 46441.
Gender identity claims in the 16 states that prohibited discrimination against transgender people in the workplace as the percentage of total employment discrimination claims went from .12 percent to .56 percent between 2007 and 2012. In 2012 there was a grand total of 43 claims, and that number is suspect given that Iowa reported (almost certainly incorrectly) 26 claims of gender identity discrimination.
Yes, there has been some increase in gender identity and sexual orientation claims since protections for people in these groups were introduced in a number of states (which include high-population states like California, New York, New Jersey and Illinois). The available evidence substantially undermines the claims of opponents that this would increase frivolous lawsuits. (Surely they couldn’t object to valid lawsuits discriminating against people in such groups, could they?)
When you boil it all down, the large majority of Americans reject the idea that any distinct group should be subject to discrimination in the workplace. The exaggerated and unsupported claims of litigation abuse offered by EDNA opponents don’t stand up to scrutiny. Perhaps EDNA opponents are afraid to come right out and say the ugly truth: They want employers to be able to discriminate against a subset of Americans. This is repugnant to most Americans so there is little wonder they’ve made up a list of bogus claims.
This is not an inconsequential issue. Suburban women, young people, independents and many other cross-sections of the electorate look at the opponents of a workplace ban on discrimination and conclude they are out of touch and intolerant. Once they’ve decided that, good luck making inroads on a host of other issues. If the GOP wants to expand its appeal beyond its hard-core base, it would be well-advised to stop creating a negative image with so many people beyond its hard-core base. And frankly, the right must think very little of its own base if it thinks support for fairness in the workplace is a losing issue.