Pragmatism, principle, and law in ENDA:

There is no federal law prohibiting discrimination based on sexual orientation in private employment, though such protection was first introduced by Bella Abzug in 1974. Courts have consistently read Title VII’s ban on sex discrimination to leave out protection from anti-gay discrimination. Currently, in 31 states, including all of the South and most of the Midwest and West, there is no statewide protection for gays in private employment.

A controversy has been brewing among gay-rights advocates over how expansive to make a new federal law, the Employment Non-Discrimination Act (ENDA), which would protect gay people from private employment discrimination. On one side of the controversy are activists, including a large number of civil-rights and gay organizations, who want the new law to protect both gay and transgendered employees from discrimination. They fear that if trans protection is not included in ENDA, Congress will not act to protect transgendered people anytime in the near future. They argue this is a matter of principle: gay people should wait until “everybody” in the “GLBT community” can get protection – however long that might take. They vow to actively oppose any bill that does not include both groups.

On the other side are various commentators (see, for example, here and here and here and here) and Rep. Barney Frank (D-MA), who claim that ENDA cannot pass Congress if protection for transgendered employees is included. They support a new version of the bill that would protect gay employees, but leave protection for the transgendered for another day. They argue this is a matter of pragmatism: civil rights legislation proceeds incrementally, through a process of education and adjustment, and has never protected “everybody” and everything all at once.

Enter Lambda Legal, the national legal outfit representing gay people in everything from immigration to marriage to employment. Lambda claims that, aside from the cruelty of leaving transgendered people out of ENDA, there is self-interest for gay people at stake in including protection for “gender identity” as well as “sexual orientation” in the bill. In an open letter to Frank, Lambda argues:

We have no doubt that, were the weaker version of ENDA to pass, some employers will claim they have nothing against lesbians, gay men and bisexuals per se, but that they do not want men whom they see as unmanly or women who they believe are not feminine enough, and loophole would be invoked against almost any lesbian, gay man or bisexual who sought protection against discrimination under ENDA.

That is, according to Lambda, an employer might successfully argue that it did not object to gay people as such, but it didn't want any employee (gay or straight) who appeared to the employer to be gender nonconforming. So, under this hypothesis, an employer could get around the gay-only version of ENDA by claiming that it fired a lesbian for being “too mannish” rather than lesbian. Or it could claim that it fired a gay man for his effeminacy rather than his homosexuality.

As a factual matter, it would be passing strange to see such a case, since almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination (e.g., calling an effeminate man a "fag"). It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.

Indeed, we now have decades of experience with state laws that protect gay people from discrimination based on sexual orientation but not gender identity. If the inadequacy of sexual-orientation protections were a real problem — as opposed to a hypothetical or theoretical one — we should expect to see many such cases. But neither Lambda nor any other organization has yet produced a single instance in which an employer successfully argued around a gay-only employment protection law by claiming that it really fired the person for gender non-conformity.

Lambda points to one such case in its letter to Frank:

For example, just two years ago, a federal court of appeal ruled that a lesbian who claimed that she was discriminated against because she did not conform to stereotypical expectations of femininity did not to have a viable claim under New York state's Sexual Orientation Non-Discrimination Act (SONDA), which fails to include an express prohibition on discrimination based on gender identity and expression.

Curious about this example, I looked it up. The case Lambda refers to is Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005). Sure enough, it does not support Lambda's argument and, if it's relevant at all, shows the opposite of what Lambda suggests. A "weak" version of ENDA would have helped the plaintiff's case.

Related Posts (on one page):

  1. Barney Frank's ENDA:
  2. Bush to veto ENDA?
  3. Lambda's ENDA:
  4. Pragmatism, principle, and law in ENDA:
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Lambda's ENDA:

Today, on a 27-21 vote, the House Labor Committee approved the Employment Non-Discrimination Act (ENDA), H.R. 3685, which would ban discrimination in private employment based on "actual or perceived sexual orientation." Many gay-rights groups, including most notably the national gay legal organization Lambda Legal, oppose the bill because it does not include "gender identity," a phrase that would protect transsexuals and other gender nonconformists from discrimination.

In a recent blog post, I criticized the view taken by Lambda Legal that the “weak” ENDA just passed by the Labor Committee – the version excluding “gender identity” – would provide insufficient employment protection to gay people. That critique was shared by lawyers and commentators in the blogosphere (for especially well-reasoned critiques, see Chris Crain's analysis here and John Aravosis' analysis here). Rep. Barney Frank, who introduced H.R. 3685 after he and other House leaders determined on a vote count that a broader bill could not pass, criticized Lambda by name in a lengthy and passionate speech on the floor of the House. I also heard privately from attorneys and supporters associated with Lambda, including experienced gay-rights litigators, who opposed Lambda’s legal critique of a limited ENDA on purported gay-rights grounds.

Lambda has now offered a detailed and substantive response to these critiques. Lambda’s concerns have to be taken seriously, coming as they do from an organization with experienced lawyers and a rich history of doing important work for the legal rights of gay Americans. As I’ll explain below, while Lambda has offered a clearer and more reasonable explanation of its views, its concerns remain exaggerated. The House should not reject H.R. 3685 out of misplaced concern for gay employees.

UPDATE: Jon Davidson, Lambda's Legal Director, replies to me in the comments here. Chris Crain comments and gets to the heart of the issue here.

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Bush to veto ENDA?

A brief statement from the Office of Management and Budget released this afternoon says that Bush's advisors will recommend that he veto the Employment Non-Discrimination Act (ENDA), H.R. 3685, the first-ever federal bill that would protect gays from employment discrimination. The bill has not been voted on in the House; no action is scheduled yet in the Senate. The OMB statement cites a mix of policy and constitutional concerns.

A similar statement from Bush's advisors, also citing policy and constitutional concerns, was issued with respect to the Hate Crimes bill, which has not yet reached his desk.

Notably, the OMB statement on ENDA does not give, as a reason to veto, opposition in principle to an employment bill protecting gays from discrimination. Nor does the statement cite general libertarian qualms with anti-discrimination laws. The advisors instead give four reasons, which I react to briefly here:

(1) Religious freedom concerns. The religious freedom concern is very weak, given the unprecedentedly broad "religious organizations" exemption in the bill. See ENDA Sec. 3(a)(8) (definition of "religious organization") and Sec. 6 (exemption of religious organizations). The law does not unconstitutionally burden the right to free exercise of religion, as presently understood by the Court, since it applies generally to all covered entities whether or not they claim a religious objection to compliance.

(2) Sovereign immunity. Given the Court's very expansive, non-textual, and ahistorical present understanding of sovereign immunity and the Court's close limits on Congress' remedial and substantive power under Section 5 of the 14th Amendment, there may well be a constitutional problem with the section of the law that authorizes money damages in lawsuits against state governments. See ENDA Sec. 11. The rest of the law is perfectly constitutional and the bill contains a severability provision. ENDA Sec. 16. As we know, President Bush has no problem signing laws he believes are unconstitutional in part.

(3) Litigation arising from imprecise terms. "Perceived" sexual orientation, as used in ENDA Sec. 4(a)(1), does not seem especially imprecise to me, especially given that "sexual orientation" itself is given a narrow definition in ENDA Sec. 3(a)(9). The OMB statement does not explain why it might be troublingly imprecise. "Association," used in Sec. 4(e), likewise has meaning in federal statutory and constitutional law and the OMB does not explain why it is too vague here. There will be litigation around the edges of this law, as there always is, but the use of similar terms in the Americans with Disabilities Act has not produced voluminous litigation.

(4) "Sanctity" of marriage under federal law. Mention anything gay these days and the administration rushes to the defense of marriage. ENDA does not alter the federal definition of marriage as the union of one man and one woman given in the 1996 Defense of Marriage Act. ENDA also does not buttress same-sex marriage in the states. In fact, ENDA specifies in Sec. 8(b) that employers will not be required to treat an unmarried same-sex couple like a married couple for purposes of employee benefits. The implication, I suppose, is that an employer might be required to treat a married same-sex couple like a married opposite-sex couple for purposes of benefits since to do otherwise would amount to sexual-orientation discrimination. But I think the argument likely to be accepted by federal courts will be that "married" in this section refers to the federal definition of "marriage" under DOMA rather than to a state's own definition of marriage. The other reference to marriage in the bill, in Sec. 8(a)(3), simply prohibits an employer from using marriage as a proxy for sexual-orientation discrimination (but the bill otherwise prohibits disparate impact claims, see ENDA Sec. 4(g)). Neither of these sections referring to marriage alters the federal definition of marriage, requires a state to recognize same-sex marriages, or even requires an employer to treat an employee with a same-sex partner the same as an employee with an opposite-sex spouse.

The president's advisors now join an alliance of strange bedfellows, including religious-right groups like the anti-gay Americans for Truth, and gay-rights organizations like Lambda Legal, NGLTF, and more than 300 other gay/transgender organizations that are all trying to kill ENDA for their own reasons. The OMB statement makes it clear that even the stripped-down version of ENDA the House is considering, which was drafted to anticipate the sorts of concerns Bush's advisors are now raising, faces a steep climb. An even more expansive bill of the sort many gay-rights groups are insisting on would likely be a complete non-starter in both the Senate and the White House.

Whether Bush will actually veto the bill if it ever reaches his desk is unknown. The reasons given for a veto by OMB seem transparently thin, which suggests either that they're a sop to religious conservatives and that Bush may sign ENDA anyway or that they're a pretext for deep political concerns Congress simply won't be able to allay while Bush is president. It's still worth it for political reasons to pass a bill the President may well veto, just as it was politically advantageous (according to gay groups) to pass the seemingly doomed Hate Crimes bill. But a dose of cold realism about the law's prospects until at least 2009 has now been added to the mix.

UPDATE: Chris Crain offers some useful additional insights on the possibility of a Bush veto here.

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Barney Frank's ENDA:

Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.

Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment.

The voting patterns were noteworthy. Of the 25 Democrats who voted "no", 18 come from rural and conservative districts, mostly in the South. The remaining seven Democrats who voted "no" did so because the bill did not include "gender identity," a provision that would have protected transsexuals, crossdressers, and other gender nonconformists from employment discrimination. The seven are: Rep. Yvette Clarke (D-N.Y.), Rush Holt (D-N.J.), Michael Michaud (D-Maine), Jerrold Nadler (D-N.Y.), Edolphus Towns (D-N.Y.), Nydia Velazquez (D-N.Y.) and Anthony Weiner (D-N.Y.). Thus, six of the seven come from the New York area, and all represent states that already protect gays from employment discrimination.

The 35 Republicans supporting ENDA — almost 20% of the Republican caucus — more than made up for the Democratic defections and were critical to House passage. These Republicans, with one exception (Rep. Jim McCrery--Louisiana), come from districts outside the traditionally conservative South.

Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee. Much of the report is devoted to recounting the history of the numerous attempts over the past 33 years — beginning with the first bill introduced by Bella Abzug in 1974 — to get Congress to deal with anti-gay employment discrimination. That history tells a story of painfully slow political progress made in each session of Congress, with more co-sponsors backing an anti-discrimination bill in every session. Other parts of the report document the prevalence of anti-gay job discrimination, as well as the economic and psychological impact of such discrimination.

In the section-by-section analysis of the committee report, I noticed a couple of passages relevant to the recent controversy over adding "gender identity" to the bill. On p. 31, the report notes that ENDA forbids discrimination based on "actual or perceived sexual orientation." Thus, "ENDA creates a cause of action for any individual — whether actually homosexual or heterosexual — who is discriminated against because that individual is 'perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex." Obviously, this interpretation of ENDA offers some protection to those employees whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis. It doesn't protect transsexuals or crossdressers as fully as adding "gender identity" to the bill would have, but the bill moves in that direction.

Additionally, on p. 33, the report puts to rest any fears that stripping "gender identity" from the bill would lead federal courts to conclude that Congress meant to impliedly reverse Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates Title VII. The report concludes that Section 15 of ENDA, entitled "Relationship to Other Laws":

Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).

This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists disappointed that the bill isn't more comprehensive. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.

ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Abzug's bill had only four co-sponsors and was completely ignored by the House Judiciary Committee. Yesterday 235 members of the House backed the same basic idea.

Many people deserve credit for making yesterday happen, including gay activists (many long dead) and their heterosexual allies, law professors, lawyers, members of Congress and their staffs, and commentators. But one person in recent history, more than anyone else, is responsible for yesterday's historic and precedent-setting vote.

That person is Barney Frank. I disagree with Frank about many things. But without his work over the years, without his dogged determination, without his eloquence and parliamentary skill, without his willingness to stand up to critics on his left and his right, and without his pragmatic understanding of the nature of incremental progress in civil rights, there would be no ENDA in any form. Period. Thanks to Barney Frank, we took one huge step closer yesterday to the day when all gay Americans — including especially the millions of them in the South, Midwest, and Mountain West — can live their lives without the debilitating fear and devastating consequences of losing their jobs because of whom they love.

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