It’s still legal for people to be fired for their sexual orientation in 29 states and for their gender identity in 32 states, but according to Rep. Tom Cotton (R-AR), it’s important for businesses that such discrimination continue to be allowed.
In a letter sent to a constituent earlier this month and recently obtained by ThinkProgress, Cotton explained why he does not support the Employment Non-Discrimination Act (ENDA), which would create LGBT job protections nationwide. He claimed that the protections would “encourage frivolous lawsuits” that would burden businesses because LGBT identities are “subjective”:
The proposed legislation, unfortunately, could have the unintended consequence of making it harder for all Americans, regardless of sexual orientation, to find jobs. It might encourage frivolous lawsuits designed to win big legal fees, not to promote equality before the law. To that end, it would increase the cost of doing business, partly because of the cost of these lawsuits. When costs increase, employers are less likely to expand their businesses and thus less likely to hire more employees. Because the legislation would protect classes that are subjective, legal uncertainty and costs could be particularly acute. Further, the legislation could impose undue burdens on freedom of religion and association. It does purport to include religious-liberty exemptions, but these “protections” have been litigated repeatedly in other contexts, which itself is burdensome. And that’s not to mention Barack Obama’s regulatory agencies, which have repeatedly shown hostility toward religious freedom.
Cotton said he supports “equality before the law” on the basis of sex, race, creed, or religion, but his letter did not contain details about how he distinguishes between identities that he considers “subjective” or “objective.” His implication seems to be that people might claim an LGBT identity that they don’t have as grounds to sue, but there’s nothing from preventing them from doing the same with a creed or religion, as examples. And contrary to his claim, there has been no evidence of excessive litigation in the 21 states that have offered some form of LGBT protections.
Sen. Rob Portman (R-OH) has similarly said that he feared ENDA would lead to a lot of litigation and impose on business owners’ religious beliefs, but he eventually voted for it. Though the Senate passed ENDA 64–32 last year, House Speaker John Boehner (R-OH) says there is “no way” it’s coming up for a vote because he believes the protections are “unnecessary.”