White Paper: A Conservative Approach to Employment Protection for Gays and Lesbians (1997) 

Also -  (2001) (Age and Disability Discrimination)   (Hate Crimes Laws) 

            Despite the objections to ENDA (Employment Non-Discrimination Act, proposed in 1993) widely discussed in my book and by conservatives and libertarians, a very limited federal employment bill to protect gays and lesbians might make sense in conservative paralnce.

            Provisions of such a bill would include the following:

            (1) No employer may ask a candidate's or associate's sexual orientation at any time, with only one exception: when the person is asked during a legal deposition or preceding in litigation involving the company.

            (2) No employer may ask marital status or marital intentions during employee screening; marital status may be asked in a confidential manner during benefits determination.

            (3) No associate may be terminated "for cause" merely for stating homosexual orientation either inside the workplace or publicly outside the workplace. This provision does not mean that the employer needs to tolerate "inappropriate for business" conversation during work. This provision does not override employment at will (that is, discharge for no fault).

            (4) No employer can make sexual orientation a contractual requiremenet for employment.

            (5) An associate's public statement of sexual orientation or advocacy of political changes with respect to sexual orientation do not create a common law presumption that the associate may be prejudiced against customers or subordinates (or other stakeholders) whom he can reasonably suspect have moral objections to various sexual behaviors.

            (6) The only employers exempted from these provisions are proprietorships with fifteen or fewer associates. Religious organizations or other non-profits are not exempt.

The principle problem with conventional gay anti-discrimination proposals is that is may be hard to enforce them without intrusive measures. True, measures like ENDA would say that anti-gay discrimination is wrong and egregious or flagrant incidents would lead to civil action. Would a covered employer feel that it must do something "affirmative" like sponsoring a company gay organization in order to ward off any possible charges of discrimination. This kind of possibility leads to the possible charge of "special rights." Of course, if a company wants to do this because it believes diversity is good for business or for understanding of customers, that is a different matter.

Even in a libertarian environment, it is possible to propose protection of gays and lesbians following the "non-aggression" model. For example, non-discrimination laws, to the extent that they are enacted, should focus strictly in terms of specific actions forbidden by employers, on the theory that such employer conduct amounts to "aggression" (even if hidden by a "contract" as in DeMuth v. Miller.) One question is, why shouldn't the choice of adult significant other be a basic human right, to the extent that we affirmatively protect it with civil rights laws? Good question, but even so this is always a statutory question (protecting individuals from other individuals or corporate entities) and not a constitutional one (protecting individuals from government).

A fair question is, should employers who have government contracts be held to a higher standard of non-discrimination against gays, or against any other controversial "group"? I think this is a backended way to look at the issue of public subsidies. Private corporations, as a matter of principle, should generally be able to use their "property" in setting personnel policies as they please. However, governments (local and state especially) should consider refusing to do business with companies which flagrantly and irrationally mistreat gays; otherwise these governments will be in the role of suborning discrimination. With military contractors, the situation is more complicated because of possible loyalty or conflict-of-interest problems (short of the measures suggested above); the recent improvements (especially since 1991) in security clearances for gay civilians does help. In like manner, private associations which intentionally exclude gays (the Boy Scouts) should not be allowed to use public spaces without fair market charge. In general private industry and private associations may well be ahead of government in eliminating anti-gay discrimination. The best way to make further progress in ending remaining discrimination is first to eliminate discrimination against gays by government. For example, the military's policy (in practice as well as law) needs to be reformed to really allow servicemembers a zone of privacy in their personal lives, and discriminatory treatment of gays by government in marriage law needs to end. It is difficult to end discrimination when dealing with government policies with actually encourage it.

Another good question is, should gays be treated as a "minority group" or suspect class (or "protected class")? This induces a societal judgment that definitional discrimination against gays is always "immoral" as with race or religion. To many activists, such achievement is the most straightforward path to equal rights for gays. Although the historical arguments record of past discrimination against gays "as a class" is quite compelling and biological evidence of at least partial immutability seems to be accumulating, arguments based on comparing sexuality to race and gender seem to suggest that gays may be held less responsible for their own conduct. Indeed, male homosexual behavior is statistically much more likely than similarly focused heterosexual behavior to lead to HIV, and culturally homosexuality seems connected with a certain narcissism that would disregard the obligations that society needs to keep going. Hence, the "moral" (and religious) opposition of many to homosexual conduct and even inclination. Until the 1990's, I personally felt the burden of proof was on me to prove myself a "good person" despite these components of my own homosexuality. Part of my answer has always been that these moral issues (focus of emotional commitment) often surface with heterosexuality, and because of their conventionality heterosexuals often seem less willing to consider the morality of their own individual choices. Even so, a system which allows private interests to make up their own minds (and avoids an official public moral position on homosexuality one way or the other) about this seems much more appropriate in classically liberal culture. Most reasonable people, when they sit down to think about it, find themselves relatively unconcerned about the sexual orientations of specific people in their own lives or workplaces. Note, also, that the "protected class" mentality (while understandable as a result of conventional interpretations of the Fourteenth Amendment) can play into conservatives' hands: some employers note that they will will not discriminate against members of "protected classes" as if to suggest that some unprotected persons are not welcome to apply.

One other point is important to me:  Even as I abhor discrimination even based on “lifestyle choice” or essentially venial outside activities (let alone the debate about “status” v. “conduct”), I feel that there can be a counter-issue of professionalism.  A salaried professional should not work for an employer whose values he would be in great disagreement with.  A non-religious professional should not work in a salaried capacity for a church, for example, or a church-owned organization,    


Federal law (starting with the Age in Employment Discrimination Act of 1967 and later the Americans With Disabilities Act, both laws having numerous revisions and administrative interpretations and support from state laws) prohibits discrimination in most cases (except for bona fide occupational requirements) on the basis of age and disability. Larger corporate employers have gradually over the years improved their compliance with these laws and regulations. Yet recruiters or “headhunters” sometimes say that they are asked to get the age and disability status of applicants, especially from smaller, less stable or established employers who will maintain that they cannot as easily afford the health insurance costs or follow the rules making the workplace handicapped accessible—and age or disability discrimination laws do not apply to headhunters!  This issue is a good one to debate how far government may or may not go in implementing social justice objectives (“fairness”) in the legal system.  A particularly curious problem could appear with jobs that require 24-hour on-call availability.  Should employers require physicals to “protect themselves” from the liability of employees whose stamina or health status precludes their having this kind of contingent duty?  If they did, could this amount to age or disability discrimination? 

There is another twist in the age discrimination debate. Until the mid 1990s it was common for employers (when downsizing or restructuring) to apply an “up or out” practice and to offer employees over 50 or 55 extra cash for early retirement. This has become less common (even given the downturn of 2001) for a variety of reasons, including the tightening of enforcing age discrimination laws (applying disparate impact analysis), both at the federal and state levels. Yet many baby boomers have “planned” for this to happen: to collect a severance, maybe a small defined benefit pension, and then go out and consult. (There are also increasing controversies over collecting defined benefits while continuing to work, even for a different employer, in a similar job.)  Laws designed to protect seniors may be hurting them. 

 There has also been legal controversy in some states over early retirement offers or other severance offers where enhanced severance is offered as consideration for a promise not to sue (and a written and signed promise to “keep quiet” and maintain a non-disclosure agreement); this cuts both ways as sometimes older workers are in a position to benefit financially from such arrangements.  (Actually this has not been as common in the late 90s as it had been earlier.) Likewise in other layoffs, employers are often offering additional benefits for employees who will agree not to sue or to talk about the company publicly after they leave. Generally these are legal, with some caveats. The subject is convoluted, and is discussed in more detail in a sidebar “Severance pay often requires silence” on p. 60 of U.S. News and World Report, February 26, 2001.

With regard to the Americans With Disabilities Act, two important Supreme Court decisions would be Bragdon v. Abbott, and Sutton.  Bragdon held a disability must be represent a “substantial interference” with life-enabling activity, which for HIV infection could be reproduction. Later, in Sutton, the “substantial” was jumped on in such a way that employers could maintain that job-performance capacity was compromised (this might include the Nightcall issue) and moreover that a claim of substantial impairment could be challenged by an employer or public accommodation if medication (such as anti-HIV drugs) or prosthesis or other medical remedies removed the symptomatic impairment. So a law that might have given effective workplace protection to some people with HIV was greatly undermined. Another important case will be Waddell v. Valley Forge Dental Associates; dental hygienist Spencer Waddell was fired when his HIV+ status was revealed to his employer; the plaintiff maintains that his firing violates the ADA, and Bragdon would seem to require the firing to be substantiated by medical necessity.  The appeal will be heard May 22, 2001. 

 On December 28, 2000 The Washington Post reported that the Labor Department will require personnel agencies NOT to screen for disabilities in most cases and that client employers will have to accommodate handicapped contractors when they are presented, even if they did not know they were handicapped before hiring them.  (However, in information systems the practice is for a consulting or manpower placement firm to arrange an interview with the first client before an offer is made; consulting firms do not hire to put people “on the bench.”)

An op-ed “Discriminated against because of being gender-different” by Juli Goins, in the Minneapolis Star Tribune, Jan. 6 2001, argues effectively that “transsexual, intersexed and transgendered people” are poorly protected in both civil rights laws and in social culture and in acceptable notions of “political correctness.” (See Note 50C in DADT Chapter 4.)

Some commentators, such as Philip Chandler writing on the Political Discussion boards at Independent Gay Forum, have pointed out that the Constitution, with the Commerce Clause provides more leeway for an individual’s freedom to exercise his/her own judgment in personal matters than in commercial activities. There is some recognition in our constitutional tradition that extreme, irrational bias actually interferes with fair competition, as with the Stanley v. Georgia decision in 1969 (differentiation between commercial use and personal possession of illegal materials).    The Employment Department of Human Resources of Oregon v. Smith, in 1990, recognized a difference between personal exercise of religious convictions and their use to effect discrimination in commerce, even if religious organizations sometimes have certain “bona fide” exemptions in discrimination law (which gives religion, to my mind, some state of preferred treatment).

On July 9, 2001, The Washington Post and Minneapolis Star Tribune (reporter Kevin Duchschere) reported about an internal memo in the Salvation Army purporting to support the Bush administration’s “faith-based initiatives” for charity if the administration would issue a rule exempting “religious” recipients of charitable federal funds from state and local laws regarding discrimination on the basis of sexual orientation in employment (including benefits).  This begs several questions:  should a religious character give an employer a privileged position in employment practices (although obviously it does sometimes), and isn’t government contributing to discrimination if it gives in to such a policy. (We have seen similar questions regarding the use of public facilities by the Boy Scouts).  Government discrimination against gays goes beyond the military and marriage. On July 11, the Bush Administration distanced itself from this proposal (it got caught). On July 20, 2001, the House passed a version of this that appears, upon reading, to actually permit religious organizations to wiggle out from state or local anti-discrimination laws in hiring if they take federal money for charities!!  Indeed (as with the military and earlier the draft) we are seeing a paradigm to use government to encourage discrimination.  See the press releases at Human Rights Campaign. 

Racial discrimination in employment is discussed at other files on this site, such as http://www.doaskdotell.com/content/xchap5.htm, http://www.doaskdotell.com/refer/chrono.htm, http://www.doaskdotell.com/content/affirmac.htm.

A note about Hate Crimes laws

In the wake of several horrible crimes, such as those against Matthew Shepard and Barry Winchell, there have been calls to protect gays and lesbians with “special” hate crimes legislation. Some commentators have pointed out that hate crimes laws would not confer “special protections” or violate equal protection if all sexual orientations, all genders, all races, all nationalities, all religions, and so on, are protected when they are drawn up.

The law properly allows the motive or intent of the perpetrator of a crime to be considered in both the crime charged for conviction and in the sentence given. Malice is a legitimate reason for stiffer sentences. Arguments that hate crimes laws would denigrate the First Amendment, then, seem rather frivolous to me. However, the spirit of equal protection requires that malice be considered in relation to the individual victim, not to the “group” to which he or she belongs.

It is easy to make practical arguments for more hate crimes laws. They may well save lives in the short run.  They may offset the natural prejudices in the law enforcement and criminal justice systems (especially the attitudes of juries). But two wrongs don’t make a right. The really right thing to do is to improve the protection of the individual victim as the law treats him as an individual.

I would be concerned that some gay activist groups find hate crimes legislation a more achievable target than other goals (like absolute equality in marriage law or service in the military) and find it an easier vehicle for fund-raising. If it were achieved, there might be a sense of complacency about striving for more principled solutions to the legal and political problems for gays and lesbians. And there might be a hidden message that you can’t get full protection of the law without belonging to a victimized group.  So I am somewhat with the conservatives on this.  

I would also point out that it is logically inconsistent to oppose hate crimes laws and simultanetously support the use of victim impact statements when sentencing convicted criminal defendants (or, for that matter, in trying to persuade a jury to convict).  Victim impact statements draw away from the objectivity of the law in punishing the crime itself towards who the crime victim is, and potentially undermine equal protection of the laws. 

Return to hppub home page      Email Jboushka@aol.com

©Copyright 2001 by High Productivity Publishing, all rights reserved, subject to fair use.