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I Just Work Here

What's more fair than fairness at work?

Bill to ban sexual orientation and gender identity discrimination is good for business

Rex Huppke

November 18, 2013

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Most of us walk around with an unfairness detector in our heads, and we're at our happiest when that detector is not going: Bleep! Bleep! Bleep!

Fairness is good. You can quote me on that.

Fairness in the workplace is not just good; it's critical. Study upon study has shown — and logic would dictate — that workers who are treated unfairly are not working at their highest potential. Employees who see others treated unfairly are equally hampered.

So there's a pragmatism to ensuring fair treatment — it's good business.

To that end, the U.S. Senate recently passed the Employment Non-Discrimination Act (ENDA), which prohibits workplace discrimination based on sexual orientation or gender identity. Many people are surprised to learn that such discrimination isn't prohibited.

According to the Human Rights Campaign, 21 states and the District of Columbia have laws against employment discrimination based on sexual orientation. Seventeen of those states and the District also prohibit employment discrimination based on gender identity.

Many companies also have adopted their own policies to protect the rights of lesbian, gay, bisexual and transgender people.

But a majority of states lack these protections — so a person could be fired for being gay or transgender — and company policies don't have the consistency that would come with a federal law.

In 2011, the Williams Institute, an LGBT-focused think tank at the University of California at Los Angeles School of Law, published a comprehensive report examining employment discrimination.

It found "widespread and persistent employment discrimination on the basis of sexual orientation and gender identity," with one survey showing that 27 percent of lesbian, gay or bisexual people had been discriminated against at work.

The report noted that "this research shows that widespread and continuing employment discrimination against LGBT people has been documented in scientific field studies, controlled experiments, academic journals, court cases, state and local administrative complaints, complaints to community-based organizations and in newspapers, books and other media.

Federal, state and local courts, legislative bodies and administrative agencies have acknowledged that LGBT people have faced widespread discrimination in employment."

So it is happening. And according to polling data, a large majority of Americans believe it should stop.

A Gallup poll from this month asked whether Americans "would vote for or against a law that would make it illegal to discriminate in the workplace on the basis of sexual orientation or gender identity." The results: 63 percent said yes, and 31 percent said no.

But the bill that passed the Senate 64-32 appears to have little chance of making it through the House of Representatives.

House Speaker John Boehner, R-Ohio, on Thursday called the legislation "unnecessary" and said it would provide a "basis for frivolous lawsuits."

We've addressed necessity. As for the frivolous lawsuits, that hasn't happened in states that enacted laws similar to ENDA.

A study published this year by the Government Accountability Office looked at those states and found: "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."

Many religious organizations and lawmakers have voiced concern that the law might infringe on religious liberty. But supporters of ENDA point out that the bill has religious exemptions similar to — and some say broader than — those in Title VII of the 1964 Civil Rights Act.

In fact, The New York Times editorial board criticized the bill's religious exemptions as "terribly broad," writing in May: "The exemption would extend beyond churches and other houses of worship to any religiously affiliated institution, like hospitals and universities, and would allow those institutions to discriminate against people in jobs with no religious function, like billing clerks, cafeteria workers and medical personnel."

I don't want to hash out the moral issues at play here. This is a workplace column, and what I see in ENDA is an opportunity to ensure greater fairness in companies across the country.

Employees should come to work safe in the knowledge that they'll be judged solely on their performance. With that security, people can reach their full work potential.

Companies benefit. Employees benefit.

Fairness, a wise man once wrote, is good.