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Prop. 107 On The Ballot In Arizona

Here we go again. The Arizona Civil Rights Initiative, Proposition 107, is on the November ballot. Modeled on the language of the 1964 Civil Rights Act and virtually identical to similar measures passed by substantial margins in California, Washington, Michigan, and Nebraska, Prop. 107 would amend the Arizona constitution to prohibit the state from ?discriminat[ing] against or grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.?

I shall have more to say about Prop. 107 as the debate unfolds (in fact, watch this space for a link to a pending post on Minding The Campus), but for now I?d like to call your attention to what some may regard as a surprisingly relevant issue I last wrote about three years ago, Will ENDA End Sexual Orientation Discrimination?

For years liberals have introduced, and failed to pass, the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination by private employers based on ?actual or perceived sexual orientation.? Here are relevant excerpts from a recent version of the bill, H.R. 3017 :

SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

(a) Employer Practices- It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

(b) Employment Agency Practices- It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of the actual or perceived sexual orientation or gender identity of the individual or to classify or refer for employment any individual on the basis of the actual or perceived sexual orientation or gender identity of the individual.

(c) Labor Organization Practices- It shall be an unlawful employment practice for a labor organization--

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of the actual or perceived sexual orientation or gender identity of the individual;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way that would deprive or tend to deprive any individual of employment, or would limit such employment or otherwise adversely affect the status of the individual as an employee or as an applicant for employment because of such individual's actual or perceived sexual orientation or gender identity....

In other words, ENDA requires employers, labor organizations, employment agencies, etc., to treat employees or prospective employees without regard to their sexual orientation.

?But wait,? as I wrote in my three-year old post,

haven?t we seen this language, or language very much like it, before? Indeed we have. Here is the operative language, for one example, from Title VI of the Civil Rights Act of 1964, which I?ve quoted and discussed too many times to cite (a few: here, here, here, here):

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

But this language, as all know all too well, has been twisted by civil rights advocates and ?construed? by the courts to permit precisely what it purported to prohibit.

Not to worry (at least if you believe civil rights advocates); the drafters and supporters of H.R. 3017 are obviously aware of the concerns produced by this history, and thus they included the following attempt to calm those fears:

[Sec.4](f) 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....

(g) Disparate Impact- Only disparate treatment claims may be brought under this Act.

So, this most recent attempt to define and prohibit discrimination specifically prohibits both ?disparate impact? litigation and ?preferential treatment,? at least to correct a real or perceived ?imbalance.? It should, in my view, have prohibited preferential treatment for any reason, including to promote ?diversity,? but even without dotting the last ?i? and crossing the last ?t? ENDA demonstrates that liberals today recognize that the equality protected by civil rights laws does not require or even allow preferential treatment. But this omission may not be important. Since ENDA does not even allow employees or prospective employees to be classified according to their sexual preference or identity, they can hardly be given preferential treatment for those reasons.

So, why do these ENDA supporters believe the LGBT community deserves less protection (assuming for a moment that allowing preferential treatment can be regarded as protection) than blacks, Hispanics, and women?

And why do opponents of Prop. 107 in Arizona object to the ?without regard? principle of equality that has been enshrined in civil rights laws since 1964 and that even the most liberal Democrats in Congress now specifically endorse?

Full post as published by Discriminations on October 10, 2010 (boomark / email).