Privatizing Employment Protections

Abstract

Among the many struggles and victories of the movement for LGBT equality in the United States, securing employment protections at the federal level has proven to be a persistent challenge. The "Employment Non-Discrimination Act" (ENDA) would prohibit disparate treatment in employment on the basis of sexual orientation. This bill has been proposed several times in Congress but has never been enacted, despite public opinion that appears to overwhelmingly support employment protections for gay and lesbian workers. This Essay argues that while gay-rights advocates and supportive law makers continue to work for statutory protections, private commitments cannot only fill the gap, they can also hasten our progress toward full statutory protections. To be most effective, however, those private commitments should, to the extent possible, mirror our best predictions about the requirements and procedures that will obtain when statutes are eventually enacted. Such private imitation of potential public protection not only enhances the remedial benefits afforded by the private commitments in the short term, it also allows the private efforts to demonstrate what might happen in the longer term, when public protections are enacted.