U.S. Senator John McCain has said he’s unsure about supporting a federal employment protection bill for LGBTs because he fears “reverse discrimination,” and sadly, on this issue, it seems to be a popular line of argument among Republicans.
Last week Cindy McCain, wife of Arizona Republican Senator John McCain, once again took the lead on LGBT equality and signed on to a campaign in support of the federal Employment Non Discrimination Act (ENDA). The bill would protect LGBTs from being fired solely on the grounds of their sexual orientation or perceived or actual gender identity.
There were hopes that this might encourage Senator John McCain to also back the legislation. Those hopes took a hit this week when McCain told the Huffington Post that he had concerns about ENDA creating “reverse discrimination”:
“I think the young people know we do not need reverse discrimination, they don’t believe in quotas and they don’t believe in some of the programs we saw in the name of racial equality implemented in the past which turned out to be counterproductive,” he said. “Ask people in Boston if busing turned out to be a good idea.”
McCain has said that he isn’t yet sure which way he might vote on the bill. I suggest that before making any further comments, he and other Republicans touting this meme actually read the legislation.
Essentially, McCain seems to be worrying that ENDA will force businesses to hire LGBTs in droves and commit reverse discrimination, that is to say discrimination against the white heterosexual majority of which he is noticeably a part and that, by its inevitable conclusion, ENDA could mean straight men and women will lose out on job opportunities just for the fact of their sexual orientation. Except, the bill provides for no such quotas or any kind of affirmative action in that regard.
H.R.1755 or the Employment Non-Discrimination Act of 2013 simply states that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual” because of their “actual or perceived sexual orientation or gender identity,” and that it is also unlawful to hire, fire, promote or fail to promote someone on grounds of the individual’s actual or perceived sexual orientation or gender identity.
Subsequent provisions cover labor unions and training programs but make clear there are broad exemptions covering the military, which makes its own selection and nondiscrimination criteria, and rather more controversial exemptions on grounds of religion.
Then, in Section 4 (f) of the bill we find the following in the text:
- No Preferential Treatment or Quotas- Nothing in this Act shall be construed or interpreted to require or permit–
- (1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation or gender identity employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area; or
- (2) the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity.
In addition, the legislation carries a “non retaliation” clause, meaning that should employers oppose the law, or more specifically what it embodies in terms of LGBT rights, they cannot find themselves subject to legal action on that basis alone.
Due to the fact that McCain’s fears are so obviously unfounded, campaign groups are hopeful of changing the Senator’s mind.
They will need to act swiftly of course now that Senate Majority Leader Harry M. Reid (D-Nev.) has said he will bring the measure to a floor vote before Thanksgiving. By a recent tally, all Senate Democrats now support ENDA and are joined by a number of independent and Republican legislators including Senators Susan Collins (Maine), Mark Kirk (Ill.), Orrin G. Hatch (Utah) and Lisa Murkowski (Alaska).
Currently, the vote tally hovers around the 59 vote mark but there is reason to think that other Republican lawmakers in the Senate could be persuaded to join in the vote. There remain some challenges there, though: some lawmakers are similarly trumpeting fears over reverse discrimination and are also crowing about what they perceive as the potential for a deluge of lawsuits, despite there being no evidence for a significant increase in lawsuits among states that have already enacted ENDAs of their own.
While there is room for negotiation in the Senate, though, the future of the bill in the House is less rosy. While Republican mainstays have appeared to soften on LGBT rights, especially when it comes to employment protections which the public polls are overwhelmingly in favor of, those from the hostile Tea Party wing continue to suggest the bill will mean religious conservatives will be discriminated against, while religious conservative groups are turning up their transphobia in order to oppose the bill.
If House Republicans refuse to let the bill to the floor it is widely believed that Democratic lawmakers will seize on that during the next Congressional elections as an example of just how out of touch the ultra conservative strains of the Party are, offering a warning for those considered more moderate among Republicans, like John McCain, that opposing LGBT rights now puts them the wrong side of the dividing line and, in the end, could cost them dearly.
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