So if the ax comes to a department, who will lose their jobs first?

maybe if sexual preferences were kept private there would be no discrimination, no?

ENDA would not make gays or lesbians any more productive
for employers.

However, ENDA would make gays and lesbians more costly
for employers. Under ENDA any disgruntled gay or lesbian
employee could sue for sexual-orientation- discrimination,
and (if even one fellow employee ever listened to talk radio
during his lunch break) make, e.g., a hostile-
environment claim that would withstand a motion to dismiss.
The minute plaintiff commenced discovery the employer would
suffer much economic harm. He would often choose to settle
to save the costs of discovery and trial regardless of the
merits.

(Of course only some gays or lesbians would ever sue under
ENDA, but employers could not predict in advance which of
them would do so. Employers would impute a statistical
share of ENDA lawsuit costs to each ENDA-protectee. That
is, suppose an normal employee costs $100K/year in wages,
benefits, payroll taxes, and general risks to produce
$120K/year of economic output. Suppose further than just
1 out of 1000 ENDA-protected employees files a lawsuit every
year, but each lawsuit costs $1M. That means the average
ENDA-protected employee costs $101K to produce the same
output as a normal employee costing $100K. For each ENDA-
protected employee, the employer’s surplus would drop from
$20K to $19K, a five percent decrease at the bottom
line! Though these numbers are purely for illustration,
this really is the way employers reason. Indeed, many
managers will reason well past that point, even if the
numbers are less dire than in our example: many managers
will think “a single ENDA lawsuit might cost the firm $X,
but if I were named it would cost me personally my next
promotion or even my job. So while the CEO requires me
to hire a quota of ENDA-protectees (to avert EEOC action
which might cost many millions), I am sure as heck not
going to hire any extra ones.”)

Normally employers avoid hiring people who are more costly
without being more productive. But under ENDA, employers
would be liable for defensive, purely economic
discrimination against gays and lesbians just as if they
were actually sexual-orientation bigots.

So here’s what would happen: the EEOC would establish
ENDA enforcement criteria, including a statistical test
to establish prima-facie cases of discrimination.
Employers would hire a quota of ENDA-protectees to meet
the statistical test (to avert EEOC action and strengthen
their defense against private actions). Employers would
avoid hiring above that quota, because ENDA-
protectees are less valuable (net of equal productivity
with greater cost) than similarly-qualified candidates
without ENDA privileges.

That is how ENDA can bestow privileges yet harm protected-
persons’ job prospects. First GLB(T) applicant at a
30-employee firm? Oh frabjous day! We’ve been praying
you would show up. You’re hired! (Ed, fax the EEOC and
tell them we’ve finally achieved statistical compliance!)
Second GLB(T) applicant? Oh, well, several people applied
for this post. The interviewers didn’t feel you were a
perfect fit for our team. Why don’t you try the firm
down the street…

(Note that people who might be covered by ENDA couldn’t
avoid ENDA’s negative effect on their employability.
ENDA won’t permit them to waive their right to sue, and
individuals cannot waive EEOC enforcement powers.

Racism is certainly repugnant, just as many people think of those who are bigoted against homosexuals (is there a good word for that? “sexist” is already taken), and incidentally, just as many people of homosexuality. But, in all of those cases, th government is a bad solution.

It is a lawyer employment law. Now, when an employer sees a homosexual applying for a job, he will no longer see an above average employee. He will see a lawsuit on wheels, and move on.