Thursday, November 08, 2007

Employment Non-Discrimination Act

Don't just read about it; read the whole bill.

The exception made for religious institutions would make Madison cringe. It may be consistent with the First Amendment as we've interpreted it over the years. But it has the federal government creating a special, officially sanctioned category of institutions based on what the government defines as religion, and granting specific privileges within it. And I'm willing to bet that is far from the intent of the Framers.

The earlier version of the bill extended the protection to "gender identity," which, in the bill's language, means "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."

Some people consider the removal of this bit a betrayal.

"I thought it was a morally bankrupt decision for them to go forward," said Robert Haaland, a transgender person and co-chair of Pride at Work, an LGBT labor organization. "More than 300 organizations opposed this strategy. It is incredibly patronizing and shows that Barney Frank doesn't particularly care about transgender people. Our community should be one."

That would be people like Greta, if we were right about her.* At one of my first jobs out of college, I worked with a real mixed bag of people -- from a former college football star to a dutiful Irish Catholic son, to a girl who got us into biker gang parties, to a henpecked Jewish husband, to a debauched pseudo-intellectual like me.

At one point, they hired an office manager. I'll call her "Greta." She walked like a woman but talked like a man using a high, wispy voice. She had no hips. She dressed immaculately, professionally. She had a good, thorough work ethic, and she went out drinking with us at the rowdy bar across the street after deadline and once laid a textbook bitch-slap on a dim bouncer that remains one of my fondest memories of that period in my life.

People made up their minds on Greta's gender one way or another. But the main thing was whether she did her job professionally. She did. And was she no worse a person than the rest of us. She wasn't.

I sort of like to think that's the way we work things out in this country. There's a continual rough, nasty balancing act of fitting in and accommodating, where people who are different learn to take it to an extent, and people who don't think of themselves as different learn to get along with the rest of us.

There always would be that one person somewhere who would just not be able to handle that. And that one person might be the boss. In Greta's case it wasn't. But in one in five or one in 20 cases, he or she might be.

The bill that cleared the House has a clause (section f) against it being construed or requiring or permitting preferential treatment for the people protected by it. It also stipulates that this protection does not apply in cases of sexual harassment, "provided that rules and policies on sexual harassment, including when adverse action is taken, are designed for, and uniformly applied to, all individuals regardless of actual or perceived sexual orientation or gender identity."

That seems fair, but I wonder. That one in five, or one in 20 bosses is going to hassle her. But as anyone who worked in an office knows, malicious bosses are far outnumbered by lazy, path-of-least-resistance bosses. The kind who, say, when confronted with an order to cut staff by 5 percent, might avoid laying off the Person Who Is Different, who just might turn around and sue under terms of this act. He will be more inclined to lay off the unprotected worker.

Which some people would say is just fine, and some would say is justice served. Because of the years of discrimination against people like Greta (though not necessarily Greta) by people like Joe Blow (though not necessarily by Joe Blow). A lot of people think that way, and they have their arguments and they make their cases.

But that's not what this bill purports to do; that's not how it's being sold to us. Yet I suspect a lot of working people intuitively think that will be the result of it. And I wouldn't call that "homophobia."

* The regulars here will remember I've railed against the AP and other style-setters for insisting writers refer to people by the pronouns those people choose to be identified by, without regard to actual biological gender. I think that's putting political correctness above the whole point and history of language; in certain cases it requires the writer to lie to his readers, and I reject it. But I always called Greta "she" and will do so here. That's a matter of personal courtesy on my part. Frankly, I still have no idea what would have been the correct pronoun in her case, and I don't really care that much. What I object to in the style books is the enforcement of a rule that selectively prostitutes language. It's a tough world, and there are places and times where veracity trumps courtesy. It ought to be up to the individual writer to decide which is which.