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Do ENDAs End Discrimination for Behaviorally Gay Men?

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Abstract

Twenty-two states have implemented state Employment Nondiscrimination Acts (ENDAs) making sexual orientation discrimination illegal, and Congress has repeatedly considered a federal ENDA. However, we know very little about the impact of existing ENDAs and the likely impact of future ENDAs. I describe the implementation of ENDAs and highlight their shortcomings relative to federal employment nondiscrimination law. Despite their shortcomings, I show that state ENDAs decrease wage differentials by roughly 20 % for behaviorally gay men. ENDAs appear to reduce this wage differential by reducing the portion of wage differentials typically associated with discrimination. These results inform a contemporary policy debate over the necessity and impact of expanded protection from discrimination for gay men. (JEL J1, J3, J7)

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Notes

  1. See: Antecol et al. 2008; Badgett 1995; Berg and Lien 2002; Black et al. 2003; Blandford 2003; Carpenter 2004, 2005, 2007; Clain and Leppel 2001; Cushing-Daniels and Yeung 2009; Elmslie and Tebaldi 2007.

  2. New York did not implement an ENDA until more than 30 years after an ENDA was first introduced into legislative debate (Sears et al. 2009b).

  3. See notes 23 to 25 in Rubenstein (2002). Representative Poshard argued laws are unnecessary given a lack of discrimination, and Senator Lott argued that laws would result in a flood of lawsuits, for example.

  4. Some states did not respond to requests for data, refused to provide data or were not asked to provide data on the number of complaints by Ramos et al. (2008).

  5. Some activists may find moderate utilization to reflect suboptimal ENDA implementation. Moderate utilization may result from low expected returns from filing complaints. Most claims are settled out of court. In court workers, have a low chance of winning claims (Colvin and Riccucci 2002; Riccucci and Gossett 1996). Most rulings on claims favor employers (Colvin and Riccucci 2002). In a survey of attorneys, 100 % of attorneys believed existing laws had inadequate provisions to protect workers (Colvin and Riccucci 2002).

  6. Some of the data used in this analysis are derived from Sensitive Data Files of the GSS, obtained under special contractual arrangements designed to protect the anonymity of respondents. These data are not available from the author. Persons interested in obtaining GSS Sensitive Data Files should contact the GSS at GSS@NORC.org.

  7. Calculating median income for each category assumes the distribution of income for behaviorally gay men is the same as behaviorally heterosexual men. This will bias estimates of wage differentials since behaviorally gay men earn less than behaviorally heterosexual men. The distribution of earnings for behaviorally gay men across each category should be concentrated below the distribution of wages for behaviorally heterosexual men. Thus, this imputation technique yields conservative estimates of the impact of ENDAs on wage differentials for behaviorally gay men.

  8. Errors may run in both directions. Requiring more than half of sexual partners to be of the same sex may misclassify gay men with a largely heterosexual sexual history as heterosexual.

  9. Misclassifying heterosexual men as behaviorally gay may bias wage regression results, but the bias would lead to an under-estimate of the wage gap for behaviorally gay men.

  10. I impute median income in the CPS separately for each year and income category in the GSS. It should be noted that calculating median income for each category assumes the distribution of income across each category is the same for behaviorally gay and behaviorally heterosexual men. This will bias estimates of wage differentials as the emerging literature suggests behaviorally gay men earn less than heterosexual men. Since behaviorally gay men earn less than behaviorally heterosexual men, the distribution of income for behaviorally gay men across each category should be concentrated below the distribution of behaviorally heterosexual wages. Thus, this imputation technique yields conservative estimates of behaviorally gay wage differentials.

  11. These questions are available in survey rounds from 1994 to present.

  12. Table 3 presents average wages to ease interpretation. Estimation, however, is done on logged wages.

  13. Occupational controls include: administrative occupations, service occupations, specialty occupations, managerial occupations, sales occupations and precision occupations. Occupations are defined as per the U.S. Census Standard Occupational Classification.

  14. For a more detailed discussion of unobservable characteristics in the GSS data see Badgett (1995).

  15. The timing of the implementation of state ENDAs is left for future research and is an important investigation on its own merit. For the purposes of this investigation, including the cultural proxies that are associated with the implementation of ENDAs mitigates to some extent the potential bias that the difference in difference framework does not address.

  16. The results are also statistically significant when classification is based upon the previous five years sexual history, but not sexual history since the age of 18.

  17. The dummy variable for behaviorally gay men is no longer significant. This is not too surprising given that the empirical specification divides an already small number of behaviorally gay men into several groups with small sample sizes.

  18. The results are statistically significant and qualitatively similar for the classification method based upon the previous 5 years. Results are qualitatively similar but not statistically significant for classification methods based upon sexual history since the age of 18.

  19. An exception: The dummy variable for white is insignificant in the wage function estimates for behaviorally gay men. This result is not an anomaly in the literature and is also found in Badgett (1995). The insignificance of the dummy variable is likely due to the small sample size (Badgett 1995).

  20. In states without ENDAs there is a considerable and significant return to reporting being married for behaviorally gay men. Researchers should be cautious in interpreting the impact of marriage on wages of behaviorally gay men when many behaviorally gay men cannot legally marry. Excluding the married dummy from wage function specifications does not alter the decomposition results. Blandford (2003) argues that some of the behaviorally gay men who are married within the GSS are concealing their sexual orientation. The higher return for concealing or being married in states without an ENDA suggests that concealing one’s sexual orientation is more beneficial in states where sexual orientation based discrimination is legal because behaviorally gay men experience some sort of discrimination there. This interpretation also supports that ENDAs decrease some type of discriminatory process experienced by behaviorally gay men.

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    Michael E. Martell

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Correspondence to Michael E. Martell.

Additional information

I would like to thank Mary Hansen, Kara Reynolds, John Willoughby and James Bono (as well as two anonymous referees) for their insightful suggestions and comments that improved earlier drafts of this paper. I am currently employed at the Occupational Safety and Health Administration. The views presented in this article are my personal views, and do not represent the official views of the U.S. Department of Labor or the Occupational Safety and Health Administration.

Appendix: First stage wage function estimates for wage decompositions

Appendix: First stage wage function estimates for wage decompositions

Table 10 Wage function estimates for wage decomposition
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Table 11 Descriptive statistics for regression controls
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Martell, M.E. Do ENDAs End Discrimination for Behaviorally Gay Men?. J Labor Res 34, 147–169 (2013). https://doi.org/10.1007/s12122-012-9154-9

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