The heated legal and political battle over Proposition 8 might suggest that marriage equality is the last barrier to full participation in society for gays and lesbians. In fact, blatant discrimination on the basis of sexual orientation remains permissible in workplaces across the nation, an injustice Congress must rectify.
Thanks to landmark laws such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act, most workers must be judged on their abilities and job performance, not on irrelevant personal characteristics such as race, color, religion, sex, national origin, age or disability. Gay, lesbian and transgendered employees, however, are unprotected by the federal government.
That would change with enactment of the Employment Non-Discrimination Act. In both its House and Senate versions, ENDA would prohibit discrimination in private and public employment on the basis of "actual or perceived sexual orientation or gender identity." It would also forbid employers from segregating gay, lesbian and transgendered employees from the rest of the workforce. Also prohibited would be retaliation against any person who reported a case of discrimination or opposed a discriminatory practice.
The bill incorporates exemptions in the Civil Rights Act of 1964 for religious organizations, a political necessity that is also consistent with the 1st Amendment's protection of the free exercise of religion. Less defensible is an exclusion for the U.S. military, but that concession would become less important with abolition of the inhumane "don't ask, don't tell" policy.
Twenty-one states and the District of Columbia have prohibited employment discrimination on the basis of sexual orientation. Twelve of those states, including California, and D.C. also ban discrimination based on gender identity. But federal protection is necessary even in those states to provide gays, lesbians and transgendered people with the same range of legal remedies available to other victims of discrimination. In states with no protection, ENDA obviously is even more vital.
There has been heartening progress toward greater acceptance of gays, lesbians and transgendered people in this society. But that doesn't render workplace protection for gays and lesbians unnecessary any more than a decline in racial and religious discrimination lessens the importance of existing anti-discrimination policies. In fact, laws against discrimination can shape public attitudes toward discrimination even in the private sphere.
Democratic leaders in both houses should expedite consideration of the bill as this Congress nears its conclusion. If they don't, President Obama should press them to act. Gays, lesbians and transgendered employees are still subjected to unequal treatment and harassment. Enacting ENDA is a moral as well as a political imperative.