There Is No Good Reason to Let Companies Discriminate Against Gay Workers

So why can't Congress pass a bill that says that?

Today, the Senate appears ready pass legislation that would finally ban workplace discrimination against gays, lesbians, and the transgendered. Because it's 2013, and there are still 29 states where it is entirely legal to fire someone for their sexual preference. Crazy, right? You can't fire anyone for being black, or a woman, or a Hindu. But you can can send them packing based on whom they date. 

Unfortunately, the Workplace Nondiscrimination Act looks good as dead in the House, where Speaker John Boehner has already voiced his opposition with a bit of anti-regulatory boilerplate. “The Speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” his spokesman told the press. Generic as the statement might be, though, it's also a bit ironic. The one thing that that reasoned opponents and supporters of the bill both seem to agree on is that, no, it probably won't cause many lawsuits. 

How do they know? Because in the 21 states (along with the District of Columbia) that have passed legislation protecting gays and lesbians in the workplace, there's only been a trickle of litigation. That's according to the Government Accountability Office, which analyzed data from 2007 to 2012. In California, for instance, 19,839 employment discrimination complaints were filed in 2012. Only 1,104 involved sexual orientation.

Now, it's possible that employers in states where the law bars LGBT discrimination are just generally tolerant about sexual preferences to begin with. But that seems unlikely to explain the entire dearth of lawsuits. In Colorado, 27 percent of lesbian and gay workers say they have faced employment discrimination. Yet in 2012, they only filed 35 complaints. 

More likely, the issue is that bringing a suit against your old boss is a grinding ordeal that many LGBT workers, especially those who aren't public about their sexuality, might prefer to avoid. As tort-reform advocate Walter Olson put it at Cato:

...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. 

If these laws aren't spawning many lawsuits, they probably aren't killing many jobs either. But that brings up a fair question: Why bother passing a bill if only a handful of people are going to avail themselves of its protections? Well, one answer is that even if they ultimately choose not make a court case out of it, LGBT workers are still regularly discriminated against (as shown in the graph below from the Williams Institute) and they should have the option of seeking legal redress. 

But Andrew Sullivan makes a separate and important point. The United States has a mammoth body of anti-discrimination law meant to protect minorities.  "And," Sullivan writes, "if such laws exist, and are integral to our legal understanding of minority rights, then to deny protection to one specific minority (which is very often the target of discrimination) while including so many others, becomes bizarre at best, and bigoted at worst." I'll leave it at that. 

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Jordan Weissmann is a senior associate editor at The Atlantic.

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