ENDA and the Capitalistic Marketplace

Recently, one of the most worthless legislative bodies, the US Senate, passed the Employment Non-Discrimination Act (ENDA), the civil rights bill of our day, which prohibits gender ID and sexual orientation in the workplace.  Amnesty International, ACLU, one of the biggest business unions in the country, the AFL-CIO and many others were gleeful that the Senate had passed ENDA.  ((See the tweets of SEIU, Amnesty International, Feminist Majority, ACLU, AFL-CIO, OFA, and NOH8 Campaign))  From the beginning, individuals, myself included, and several organizations were troubled by ENDA. The ACLU, the National Center for Lesbian Rights, and other groups criticized the huge religious exemption in the law, with Will Kohler taking this views to their logical conclusion, writing: “the current version of ENDA is virtually worthless.”

These views were not connected to the massive influx of money spent in favor of ENDA, the push for an executive order to enact ENDA for federal contractors, and the possible split developing in the GOP over the law since the newly-created American Unity Fund has the financial backing of part of the Republican establishment.

My uneasiness with the law began upon reading the current text of the law on Open Congress. Section 3 (a)(5) defined an employer as a person “engaged in an industry affecting commerce…[of an employer] who has 15 or more employees…for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but does not include a bona fide private membership club.” According to the most recent data from the Small Business Administration over 17 million workers are part of such businesses or as a percentage, around 15-16% of the current work force.  ((Go to US Small Business Administration,  see the section titled “U.S. Data including multiple tables”, and click on “U.S. data” to get the exact numbers, the latest numbers which from 2010. It is not possible to get full numbers for 2011 using a link ‘Establishments and employment by employment size of firm’ which are ‘private-sector firms’ because this chart crunches sizes of businesses between 10-19 employees together which makes an analysis impossible for ENDA, since the limit is 15 employees.)) While this doesn’t seem like a whole lot, the combined annual payroll of these workers is almost $600 million dollars! This payroll comes from workers in over 4.9 million business firms, over 86-87% of total firms, and almost 5 million business establishments, 68-69% of total business establishments. In summary, ENDA applies to a great majority of the workforce, but only to a sliver of the overall businesses.

However, the law does not “apply to a volunteer who receives no compensation.” This means that 64,000 Americans considered volunteers by the Bureau of Labor Statistics, are not protected by the law.  ((As noted on the BLS webpage, titled ‘Volunteering in the United States, 2012’))  While these exemptions are troubling, they are only the beginning. The last section of the law says those fired for gender ID or sexual orientation before the act is enacted will not benefit from the legal repercussions of the law while section 8 allows employers to continue (or begin) to set “dress or grooming standards” of employees.

As a result, it is unknown “how fair actual implementation will be.” The last version of ENDA had a number of problems, mostly stemming from the fact it didn’t provide trans*  ((For those who do not know why the word trans is used with an asterisk, I recommend you check out posts for clarification as noted here, here, and here, among other places))  people with protection from discrimination, basically throwing them “under the bus,” a law that was pushed forward by Gay Inc., itself.  ((Gay Inc., in its broadest definition, includes non-profits and NGOs such as GLAAD, PFLAG, HRC,  The National Gay and Lesbian Task Force (NGLTF), GLSEN, Gay & Lesbian Advocates & Defenders (GLAD), Out & Equal, Family Equality Council, American Foundation for Equal Rights (AFER), the National Gay & Lesbian Chamber of Commerce (NGLCC), Arcus Foundation, Gill Foundation, Log Cabin Republicans, Freedom to Marry, and Equality Forum as noted on twitter. In a strict sense it would include GLAAD, NGLTF, and HRC as noted by Peter Staley and Andy Thayer.))  This view was expressed at the time by the Radical Homesexual Agenda and Morgan Collado on NU Writing who argued that by pushing for this law, “the HRC was…serv[ing]…the interests of the moneyed, white gays and lesbians.” The Gender Employment Non-Discrimination Act (GENDA), a similar law introduced in New York in 2009, also generated criticism with a number of groups claiming it placed too much faith “in our deeply flawed, transphobic, and racist criminal legal system.”

More important than the exemptions, however, is who backs the law. The Human Rights Campaign (HRC) web site, part of Gay Inc., listed over sixty ‘leading employers’ as part of the Business Coalition for Workplace Fairness. According to the HRC, these businesses “support workplace fairness and the passage of the federal Employment Non-Discrimination Act.” Seeing some of these corporations in support like Intel, IBM, Microsoft, Citigroup, Pfizer; Coca-Cola, Time Warner, Dow Chemical, DuPont, BP and Chevron was puzzling to me. In researching this article, however, I learned that of the 64 Senators who voted yes on ENDA, one thing can be certain: all received funding either from PACs or from individual contributions from big employers that declared their support for the law. A thoughtful question, asked by someone with whom I have been communicating deserves an answer: “Could they [the corporate backers] be like politicians looking for votes? Only in this case – corps. [corporations] looking for customers?” This article will attempt to answer this question, and put into a broader context.

After ENDA sailed through the US Senate, Wall Street-friendly Senator Harry Reid declared to his colleagues: “More than 100 of the nation’s largest businesses…have spoken out in support of the Employment Non-Discrimination Act…corporations also agree non-discrimination policies are good for business.” President Obama said almost the same thing. In a statement he released on November 7th, he wrote “this bill has the overwhelming support of the American people, including a majority of Republican voters, as well as many corporations, small businesses and faith communities. They recognize that our country will be more just and more prosperous when we harness the God-given talents of every individual.” Like his statements on other issues, this seemed very scripted, and was meant to get support for himself, after his reversal on gay marriage earlier in his presidency resulted in an influx of cash.

Then in the gay newspaper, the Washington Blade, CEO Selisse Berry of the non-profit, Out & Equal, part of Gay Inc., made a chilling statement: “Washington should take its cue from corporate America,” which sounds like it was said by some high-flying business executive, but it was not. Campbell Spencer, director of the ‘Business Coalition for Workforce Fairness’ told The Hill “that the business community will stay as an ‘essential ally in passing ENDA.’” In some regards, this is no surprise, considering that almost 90 percent of Fortune 500 companies already “extend workplace protections based on sexual orientation,” while over 57% of these companies had such policies for gender identity which is why the Editorial Director of Entrepreneur.com, Ray Hennessey, wrote that ENDA isn’t needed because Corporate America is already doing it. At the same time, as an article in Queerty noted that ENDA is lagging behind because workplace discrimination is not visible, and that since big business is backing gay marriage, the energy has been directed toward those causes. This is why some have said that ENDA “contributes to the normalization of a segment of LGBT population” while others have said that it will have benefits and a real impact, but that while corporate support for the law is “how our capitalist gov[ernment] works,” we should go beyond legislation as the answer.

It is important to understand the views of the corporate sector on ENDA. The views of business are varied. Christian Berle, legislative director for Freedom to Work, which fights against lesbian, gay and trans* discrimination, noted that similar workplace protections in Arizona helped “attract and retain the best workforce possible” and Matt McTighe, a campaign manager for Americans for Workplace Opportunity, had somewhat similar view saying that such policies reinforce the idea that employees should be evaluated “on their hard work and merit, not on whether they’re gay or transgender.” Basically these arguments can be boiled down to one point: corporations want qualified, good, and obedient workers, no matter their sexual orientation or gender, who allow them to get massive profits.

In a comprehensive article on the website of the Center of American Progress, Sophia Kerby and Crosby Burns wrote that those businesses that “embrace diversity” gain stronger economic foothold, since in their view, “a diverse workforce drives economic growth…[and] can capture a greater share of the consumer market” while at the same time in theory the workforce would be more qualified, creative and innovative. These words sound like they could have as easily come out of mouth of Tim Cook, the CEO of Apple, who wrote in a pro-ENDA op-ed in the Wall Street Journal:  “if our coworkers cannot be themselves in the workplace, they certainly cannot be their best selves. When that happens, we undermine people’s potential and deny ourselves and our society the full benefits of those individuals’ talents.” Basically, he is saying that passing ENDA will let people express their talents and creativity, which are important for the corporate sector, at least for companies like Apple.

A Forbes Insights Study of companies, done in association with AT&T, and L’Oreal USA, in which 321 executives of companies with $500 million in revenue who had “direct responsibility or oversight for their companies’ diversity and inclusion programs,” had a similar point, making a number of key findings about diversity being a “key driver of innovation” and being vital in attracting “and retain[ing] top talent.”

Rich Steeves writes on Inside Counsel that corporations agreeing to ENDA “are making a social statement, affirming their commitment to non-discriminatory policies and expanding the concept of workplace diversity.” Other high-ranking corporate employees such as Thomas Maloney, the director of government affairs for Marriott, made a similar point, noting that ENDA is “consistent with our internal policies already in place” while it is also a “national consistent policy [meaning it is]…good for the business community.”

Paul Douglas, the Executive Vice President of Commercial Banking of the tar sands funder, TD Bank, adds to this, writing that “the case for diversity is compelling and well established – stronger stakeholder relationships, better decision-making, inclusive workplaces, long-term business sustainability and so on…let’s not pretend that the GLBT market doesn’t represent a fantastic business opportunity…The bottom line: It would be foolish not to pursue such a potentially profitable client group.”

These words lead into the most revealing statement. Speaking for the Business Coalition for Workplace Fairness, the then-Chief Diversity Officer of General Electric and current President of the GE Foundation,  businesswoman Deborah A. Elam, told the Wall Street Journal  ((The original article is only available to subscribers, so this quote is from another source which luckily reported on some of the quotes noted in the article that is linked to.)) that “[the] Coalition is endorsing non-discrimination protections that are consistent with our existing workplace policies. We believe the group’s work in advocating for these protections communicates our own beliefs, and benefits the company by retaining talent, supporting our recruiting efforts and marketing our consumer products.” Clearly this means something frightening: the corporate sector believes that the GSRM [Gender, Sexuality and Radical Minorites or LGBTQ+] community is a marketplace to sell goods and services.

This market is global one. It’s part of what corporate magnate Arthur Jensen described in the always-to-be-watched movie, Network, released in 1976: “There is only one holistic system of systems, one vast and immane, interwoven, interacting, multi-variate, multi-national….system of currency…We no longer live in a world of nations and ideologies…The world is a college of corporations, inexorably determined by the immutable by-laws of business.  The world is a business, Mr. Beale!” This business racket in the GSRM community is connected to what is called the Pink Dollar (US) or Pink Pound (UK): “money spent by gays and lesbians on goods and services that appeal to them.”

Wikitonary says that it is “the business generated by providing goods and services to the homosexual community” while Wikipedia says it is the purchasing power of this community and relates to their political contributions. A page on academic.ru notes that “Pink dollar…is a term describing the purchasing power of LGBT individuals in the United States…Occasionally, the similarly termed “blue dollar” is used specifically for lesbians.” Josh Sprake adds to this on Honi Soit, defining the ‘pink dollar’ as “the gay market, or the ability of a business to appeal to the gay population.” Some writers and groups say that people are not telling the ‘truth’ about the money that gay, bisexual and lesbian Americans have at their disposal including professor and researcher M.V. Lee Badgett, the Gay Inc. organization, NGLTF in a detailed analysis, researcher Joe Clark who claims to show the ‘facts’ about lesbian and gay incomes and earning, Richard Smith of the gay online publication, Fagburn, who says a bunch of lies are being spread. Whether the claims made by marketers or online writers are true or not is questionable; therefore it is best to conclude that everyone, even those who are critical of the concept of the ’Pink Dollar’, will definitely agree that there is a specific market for the GSRM community.

It is important to describe the specifics of this market. Xander Gibb, a gay businessman, begins this discussion, writing on his website that since “some business people think the pink Dollar has become one of the most increasingly sought after markets…[resulting in] lots of overtly gay advertising for products ranging from furniture to whisky…[but that] it seems odd that mainstream companies should take such an interest in the finances of our community.”  More context to this is added in an article on CNN Money by reporter Emily Jane Fox. A demographer named Gary Gates was quoted as saying: “Corporate support for the LGBT community largely preceded public support for it. Corporate America perceived that there was a big consumer market.” This big market is estimated with wildly ranging numbers: in 2011 the Philadelphia Business Journal said that the buying power of LGBT people was $835 billion, a high-ranking PFLAG (part of Gay Inc.) member estimating that by 2012 the “the purchasing power of the GLBT community would reach…$2 trillion” and the widely cited number (by groups like HRC) that the total buying of the community is projected to be $790 billion.

Whatever the actual size, it is clear that corporations are trying to cater to this market. Doug Ray, who works for Carat, a subsidiary of a marketing and communications company Aegis Group, dealing specifically with media communications, writes about this, saying that as homosexuality becomes more mainstream, marketers need to compensate for this by having inclusive marketing that does not exclude this demographic. Brian Stout, the Global Strategy Director at Leo Burnett Worldwide, who leads the companies “LGBT business development and consult[s] on brands including Allstate” according to LinkedIn, writes on his blog spot that the LGBT segment as consumers has gotten much attention, as business entities want this demographic to have brand loyalty to their products, which they hope to market to in order to get “cold, hard cash…[from a]…segment [that] has become so powerful and influential in spotting trends and setting trends..[and] is a powerhouse in impacting corporate bottom lines.” These views are clearly held by some corporate executives.

Due to the view by many executives that there is a market to be had, marketing strategies have definitely increased. Let us not fool ourselves: we should not assume that the GSRM community is some monolithic body, where everyone has the same buying power, marketing habits, or donate to the same types of politicians. The paragraph that follows attempts to describe the advertising that corporations and others are doing to attract consumers in this community. An abstract of an article in the Journal of Public Policy & Marketing notes that while corporations have put in place ‘LGBT-friendly’ policies, the corporate sector in the US spends millions on targeted marketing toward this group of people, but in doing so, they treat them as a “unified market” which is deeply problematic.

This type of advertising is nothing new. An article on CBC notes that the marketing of Gays goes back to the 1970s when “television and its depictions of gays that had the biggest effect on advertising…[and] homosexuality began showing up in more primetime storylines” but in the 1980s advertising disappeared during the ‘AIDS Crisis’ while the recession of the 1990s led to advertisers going on a search for “new, affluent markets” and over time the corporate sector became more involved in catering to this market.  These views have been spread across the corporate sector; there was even a marketing conference in the UK in 2006, concerned with the Pink Pound, to supposedly allow corporate executives to understand this “complex, over-stereotyped and difficult to segment market.”

This market is also present in other countries as well. A report on EuroMonitor spreads the views of the marketers about the gay & lesbian community, but they make a good point that the consumers of this community “along with more relaxed attitudes towards gay culture around the world, is opening up a wealth of opportunities for companies to target this large and lucrative niche.” In specific countries, this market is described in detail. An article on Yahoo! Canada Finance from 2012, says that the market for LGBT people is estimated to be $100 billion. They write that “the gay and lesbian community is now recognized as an essential audience segment…[evidenced by] beer, travel, clothing and cosmetic companies…be[ing]…big supporters of Pride events.”

In the UK, there was a good amount of criticism and coverage of the ‘pink pound,’ and the LGBT market with the Independent having an article about gay marketing, an article in Out Magazine about the money LGBT Brits spend in Israel, questioning the possible commercialization of the gay & lesbian society in the UK, a detailed analysis of the ‘pink pound’ by BBC News in 1998, and Justin Bengry writing about the courting of ‘pink pound’ in the UK from 1935 to 1939.  In an email interview I did with UK-based queer DJ Bootsy he told me that “the broad acceptance that the Pink Pound…helped create an ethos, politics [and] culture that is as “totalizing and tyrannical”…[including] the socialisation of our lesbian [and] gay communities into the mainstream and of our acceptance [and] assimilation into ‘normal’ society…[which has caused] a fundamental change in emphasis in our movement, away from the original concept of Gay Power…towards faith in the power of the Pink Pound [and] consumer unity.”  Additionally, there has debate about the purchasing power of the gay community in Lebanon as noted by Bekhsoos, a feminist and Arab magazine.

In order to finish the analysis, it is important to change the focus slightly. Instead of looking at how every corporation that pledges support for ENDA will participate in this consumer market, I’ll focus on a few important examples. There is likely a possibility that corporations are using this market to promote pinkwashing, which means they are being gay-friendly so they can soften or downplay parts of their corporate reputation that others consider negative. After all, big banks & telecoms bankroll Gay Inc., which has resulted in proposals such as ENDA. One of these organizations, the HRC, has the ‘Corporate Equality Index.’ which fits into this.

The current index lists Chevron, General Motors, Bank of America, Ford Motor Company, Hewlett-Packard, AT&T Inc., JPMorgan Chase, Citigroup, Verizon, IBM, AIG, Cardinal Health and Freddie Mac as being 100% inclusive of LGBT employees, which is used in corporate marketing toward the GSRM community. It is likely this marketing is the reason that 87% of LGBT adults favor brands that give equal benefits to employees that are LGBT, 47% purchase products or services offered by a company when advertisements have been tailored toward their audience, almost 1/4th have “switched products or services in the past year because a different company was supportive of the LGBT community” while over 70% of lesbians and gays retain brand loyalty to a ‘LGBT-friendly’ brand even if the prices increase, according to a survey by Catalyst. These views influence how corporations participate in this market, where Apple products like iPhones, iPods and iPads, Google products like Androids, Amazon.com products like Kindles, Microsoft subsidiaries like Skype, and many others are the “best perceived brand[s] by the LGBT community,” which definitely affects their marketing. After all, consider that Microsoft and Amazon.com have backed gay marriage in the past; Microsoft and Google jointly launched a LGBT tech network; Nike, which uses sweatshop labor, has backed gay marriage.  Microsoft has a ‘diversity’ program, and Apple has been responsive to concerns about anti-Gay apps and have taken some down.

The other corporations listed as supporters of ENDA by the HRC (noted earlier) need further explanation. The first of these is American Airlines, which was the only company listed as a ‘supporter’ on the list compiled by OpenCongress.  ((This list is severely lacking since it does not include any of the corporate supporters.  As soon as this article hits the presses, I’m going to send them an e-mail about this and hopefully the problem is fixed so all the sponsors are added.))  On their website, they boast they are “the first and only airline to achieve a perfect record every year in the HRC’s Corporate Equality Index to benchmark America’s leading workplaces,” and that they were “the first airline to include LGBT-owned businesses in our supplier diversity program, and to extend Family and Medical Leave Act eligibility to same-sex couples and their families as we do for others” as noted here. They also claim to have “supported more LGBT causes and nonprofits than any other airline” while the Dallas Voice opined, using twisted logic, that the company’s merger with US Airways was good news for “the thousands of gay and lesbian employees of American Airlines…because…many will be getting a raise.”

Additionally, George Carrancho, who manages American Airlines’ Rainbow Team, which targets the huge gay and lesbian travel industry, says that the team buys ads, builds floats for pride-parades, offers unnamed “useful services” for communities and has as “many gay-themed national events as we can.”

This industry is little studied, but Kingston Lam clears this up, providing an analysis of the LGBT Tourism Market in the United States,’ saying that “targeting pink dollar expenditure is potentially targeting a very lucrative market segment…offer[ing] companies remarkable potential for growth and profitability…[since there is an] attractiveness of the LGBT market for e-marketing…[and] LGBT people travel more…[which] has already influenced many hospitality and tourism sectors…[since] lifestyle representation represents a group of identifiable consumers.” These views clearly explain why American Airlines would market to the GSRM community.

On another side, one must consider why Bank of America would back ENDA. Let us first consider that this big bank settled with lesbian homeowners who were denied their mortgage, granted gay organizations a bunch of money likely to influence them, was a sponsor of the Charlotte Pride parade, and participated in a LGBT leadership summit along with other Wall Street banks. Their biggest appeal seems obvious: the ‘leader’ of Gay Inc., the HRC, promotes them by saying you can get a ‘Rainbow Plus’ debit card, which is a slap in the face for all Americans who have been defrauded, swindled and cheated by such a large-scale powerful criminal enterprise. With other companies, this marketing continues.

Microsoft has sponsored a gay gaming convention, which was also sponsored by Electronic Arts, and they now even allow Xbox Live players to reveal their sexuality online. This ties into the gaming market, with these actions specifically tailored toward gay (possibly bisexual and trans*) videogamers, or Gaymers. An article by Adrienne Shaw in a publication called Games and Culture, notes that “the representation of the GSRM community in games is influenced by the “attitudes of those in the video game development community…[which could create a] backlash for having GLBT content” and in general “game developers create games that they think appeal to their target market” but this may be changing as “the presence of motivated producers is one requirement for GLBT content in media.” A comprehensive survey of Gaymers in 2006 showed that over one-third of the respondents wanted gay or lesbian content in role playing games, and in action adventure games, while many spoke of homophobia in the gaming world. These factors definitely influence how the gaming companies tailor their products toward this market.

Now, that there is a start to the examination of the market consisting of money spent by many in the GSRM community, it is important to go back to ENDA itself. This law, while it tackles discrimination, which will help a good number of people, has inherent flaws. As Yasmin Nair, wrote in 429 Magazine: “ENDA’s support also comes at the cost of re-affirming views about homosexuality as innate and beyond one’s control…[since it]  writes in requirements…[that exclude] gender-non-conforming people…[from a] public conversation about what it means to be LGBTQ…In addition, ENDA does nothing to address the systemic forms of economic discrimination…[and it] will do little more than provide cover for larger companies and corporations who already espouse “gay-friendly” policies.”

This sort of pinkwashing is only the start. An article by musician and writer Tommi Avicolli Mecca on Open Salon notes that “40% of homeless youth in America identify as LGBT” and this is the type of thing ENDA won’t address or even attempt to address in any meaningful way. Most importantly, it doesn’t address the abandonment of trans* and queer people, while promoting ‘official’ solutions, not solutions that would be utterly transformative and helpful to these constituencies as noted in a publication titled Captive Genders: Trans Embodiment and the Prison Industrial Complex.

Let us recognize ENDA for what it is: making some changes, but really reinforcing the capitalistic status quo by not challenging corporate power or the power elite in any serious way. In the end, a critical tone toward the mainstream Gay Inc. organizations is needed, following in the footsteps of groups such as Gay Shame SF, Gay Shame San Diego, Queers for Economic Justice, LAGAI, Incite!, ACTUP New York, the Radical Homosexual Agenda, and many others, as the corporate sector is going full-speed ahead in rapidly trying to turn the whole GSRM community into a market so they can get millions of dollars in profits. People need to raise up their voice in opposition to this injustice.

Burkely Hermann is an activist who wants to change the world for the better by imagining alternatives to the status quo of neoliberal global capitalism. In order to illuminate these alternatives and outline the status quo, he runs numerous online blogs, writes numerous articles, and uses his tech savvy skills to fight for social justice. Read other articles by Burkely.