Transgender Workplace Diversity

Liveblogging the Senate ENDA hearing Thursday, 10am ET

2009-11-04T20:38:00.003-05:00

I will be liveblogging the Senate ENDA hearing Thursday
morning at 10am ET at http://bilerico.com Please join us then to view the video of the hearing and commentary on events as they unfold.

ENDA, of course, is the Employment Non-Discrimination Act, the bill to prohibit job discrimination because of sexual orientation and gender identity. The hearing is being held by the Senate Committee on Health, Education, Labor and Pensions (the "HELP" Committee).

I am not yet sure where the HELP Committee hearing will be broadcast, am looking into it and will tell you when I find out. During the liveblog, we will provide you with instantaneous information about the Committee members as they speak, the witnesses as they testify, and references to specific issues in the bill as they are raised. You will see comments from some well-known members of our community in the hearing room via Twitter. Tweeters from the hearing room will include Kerry Eleveld, reporter for The Advocate, and Mara Keisling, Executive Director of the National Center for Transgender Equality, as well as several others.

As we saw in the House hearing held on September 23, we will probably see a statement by the Chair, Senator Tom Harkin, a statement by the ranking Republican member, Senator Michael Enzi, and statements by a series of witnesses who have experience regarding the need and import of the legislation. Senators can ask questions of the witnesses and make comments, and a final statement by the Chair will close the meeting.

There are 23 members of the Senate Committee that will be hearing this matter. 12 are confirmed yes votes, 10 are unconfirmed, and 1 is a confirmed no vote. Two of these unconfirmed votes are going to be very important to watch: Senators Lisa Murkowski of Alaska and Senator Kay Hagan of North Carolina. You can see the spreadsheet with the info for each Senator on the Committee here: http://bit.ly/4maV59

There are 56 confirmed yes votes according to my calculations, so four more are needed to overcome the Republican filibuster. Senators Murkowski and Hagan could bring us up to 58. Neither of them have revealed much about how they will vote. Senator Murkowski has simply said nothing, though she was one of 5 Republicans to cross the aisle and vote against the Republican filibuster of the hate crimes bill. I suspect that she believes in workplace equality, but don't have much a basis for that belief, since she has said nothing on the issue. When Senator Hagan was in the North Carolina legislature, she co-sponsored an inclusive ENDA-type bill that included both sexual orientation and gender identity. However, she has told constituents who inquired that she would have supported the 2007 SPLENDA bill (split ENDA, containing sexual orientation only and not gender identity), and will have to consider carefully the impacts of this new bill.

Their behavior and words at the hearing will reveal much about how well ENDA is doing.

Please join us Thursday morning from 10am to about noon or 1 Eastern Time at http://bilerico.com for the hearing video and liveblog.

What's Happening On ENDA?

2009-10-12T11:40:00.003-04:00

What's happening on ENDA? The House is practically on board, and the vote will happen in the next few weeks. My calculations, as shown in the Inclusive ENDA House spreadsheet, show 212 likely yes votes, with another 6 needed for passage. They are 98% of the way there.

The real fight on ENDA is in the Senate, where there are only 49 confirmed yes votes. That's only 82% of the way there. Another 7 are likely yes votes, but they're not saying. Even so, 4 more votes will be needed to get ENDA passed.

If you're interested in specifics, let me say that there are 16 Senators who are on the fence about ENDA. Political calculations and more after the jump at Bilerico.com.

Read More...

Arguments Against ENDA: Inquiries Into Employee Sexual Orientation

2009-10-12T06:00:00.000-04:00

Some are concerned that ENDA will require employers to begin inquiring into their employee's sexual orientation and gender identity, in order to avoid lawsuits alleging discrimination if there are few LGBT employees in the workplace. This concern is misplaced for several reasons. However, it has led some legislators to express concern about ENDA, including Senator Richard Lugar of Indiana. Senator Lugar seemed supportive of ENDA in the past, but recently released a letter expressing his reservations. One of his concerns was that ENDA will lead employers to probe their workers.

ENDA Will Not Lead Employers To Probe Their Employees

Senator Lugar's letter said: "I also am concerned that ENDA would induce employers to probe the sexual orientation of their employees as a means of preparing for or preventing potential lawsuits or EEOC actions. Such a development would not be positive for employee privacy or workplace dynamics, and it could have unpredictable consequences for the fairness of hiring decisions. I understand that ENDA does not require such inquiries; however, many employers will see some degree of information about the sexual orientation of their employees as a vital element in dealing with potential litigation."

This argument is mistaken on two levels.

Most significantly, Senator Lugar's argument is that ENDA will cause employers to begin inquiring into people's sexual orientation and gender identity because they're afraid of being sued. The concern here appears to be that workers' right to privacy would be infringed by concerned employers, leading to more discrimination, rather than less. This argument assumes that employees' right to privacy of sexual orientation and gender identity has been protected in the past. In fact, as demonstrated by testimony at the recent Congressional hearing on September 23, 2009, and that of prior Congressional hearings in years past, there is already a great deal of discrimination against LGBT workers. The idea that workers are somehow now protected from discovery or suspicion of their sexual orientation or gender identity is a false notion. This argument seems to suggest that discriminatory employers will say: "We liked you before, LGBT employees, and never harassed or discriminated against you, but now that you're protected by ENDA, we're coming after you."

This argument makes the claim that the anti-discrimination law is the cause of discrimination. That is not a claim backed up by any evidence.

Secondly, the idea that employers should collect statistics on their employees' sexual orientation is rejected by ENDA itself. The text of the bill specifically prohibits the collection of statistics or the imposition of a "gay quota." (Sections 4(f) and 9) The bill also prohibits "disparate impact" lawsuits claiming that there are not enough gays in the workplace. (Section 4(g))

Senator Lugar's suggestion that ENDA will cause employers to start tracking their employee's sexual orientation and gender identity ignores what ENDA specifically says.

Thus, the argument that ENDA will hurt LGBT employees by imposing reporting requirements is mistaken.

Arguments Against ENDA: Flood of Litigation

2009-10-08T06:04:00.000-04:00

An often used argument against proposed legislation is that it would unleash a flood of litigation that will overwhelm courts and businesses. This argument has been raised against ENDA. However, the available evidence suggests that ENDA is unlikely to cause a flood of litigation.

The argument has nonetheless caused some concern among legislators. Senator Richard Lugar of Indiana has released a letter in which he raises this issue as a potential point of contention. A letter from Senator Lugar argues that ENDA would unduly increase litigation.

Point I: ENDA Would Not Unduly Increase Litigation

Senator Lugar says: "However, I remain concerned that ENDA would unduly increase litigation, create momentum for additional contentious protected employee classifications, and adversely affect the enormous number of small businesses not covered by the bill's 15-employee exemption."

The available evidence suggests that ENDA is not likely to unduly increase litigation.

In 2001, the Senate Committee on Health, Education, Labor and Pensions issued a report on ENDA. It noted that "the EEOC expects that implementing S. 1284 would increase its annual caseload (currently about 80,000 cases) by 5-to-7 percent." That's not an undue increase in litigation.

Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows also shows that there is not likely to be an undue increase in litigation.

California had only 821 sexual orientation discrimination lawsuits last year for a population of 37 million. What does this mean for the idea that ENDA will cause a lot of litigation?

This means only 0.1% of the 724,000 business firms in California were sued based on sexual orientation.

If the same numbers hold true for the 8% of US businesses with between 20 and 99 employees, then there will be approximately 500 lawsuits for the half-million businesses under 100 employees.

The California numbers show that sexual orientation lawsuits accounted for only 4% of the 18,785 discrimination cases in California that year.

Thus, Senator Lugar's concern about small businesses with over 15 employees is misplaced. The evidence shows a trickle, not a flood. There is no reason to expect an undue amount of litigation from ENDA.

Arguments Against ENDA: The Bathroom (Part IV)

2009-10-05T06:01:00.001-04:00

A major objection to gender identity protections in ENDA is that it will cover transgender people, and where will they go to the bathroom?

As odd as it might seem to argue that an entire class of people should go jobless because we can't figure out where they will go to the bathroom, the power of the objection should not be underestimated.

Its power is not so much based on the actual practicalities of figuring out "which bathroom?" -- which is a fairly simple problem with a fairly simple solution. It more directed to concerns rooted in the perpetuation of gender segregation and transphobia. Should these concerns dictate that transgender people cannot be employed? Clearly, the answer is no.

At one time, pretty much everything was largely sex segregrated. Men went out into the public marketplace to work and make purchases, and women stayed at home and worked in the company of other women. When the Industrial Revolution came, employers mostly employed men as workers, with the exception of a few industries, where the workers were all women. Men had their own private clubs and societies and bars where they could spend a pleasant evening, and women were not allowed as members. Since 1964, when it became illegal in this country to discriminate based on gender, some industries have become increasingly feminized, though there are relatively few women in the C-suite as leaders of industry. The idea that women should be segregated from men in public accommodations, in politics, in education, and in jobs has gone the way of the horse and buggy.

The only vestige of this sex segregation left is the public bathroom. While there are many places that no longer separate their public bathrooms by sex, as in some US colleges and in many places in Europe, it is a dear old tradition at this point, and a lot of people like it. But that shouldn't prevent me from getting a job.

There are a number of variations on the bathroom argument. The business-y "I'm-not-transphobic" ones refer to concerns about ambiguity of definitions and accommodation costs associated with building separate bathrooms for transgender workers. These, however, silently invoke far darker and nastier beasts thrashing about in our cultural subconscious, namely the fear that transgender people are crazed sex predators who will be unleashed against the helpless women of America. But let's deal with the easy objections first, shall we? It's already been a long day.

Accommodation Concerns

The bill itself specifically states in Section 8 the accommodation requirements of employers. It explicitly notes that nothing in the bill shall be construed to require the construction of new or additional facilities. Thus, employers will not have to undertake additional costs.

It should also be noted that the question of accommodating a transgender employee arises quite rarely. It is not as if millions of American employers are suddenly going to have to address thorny questions about bathroom accommodations when ENDA goes into effect. The number of openly transgender workers is very small, probably about 1 in 1000 workers at most in the large employer context, where transgender people have a higher degree of relative safety.

It's important to note that the bathroom issues have to be worked out regardless of whether there is a federal law like ENDA. 12 states have laws prohibiting discrimination against transgender workers, another dozen have court cases or executive orders prohibiting it, and about 100 cities have such laws as well. There's hasn't been a flood of litigation there over bathroom rules since the first law was put in place in 1975. In fact, there are four court opinions in the country on the subject to date. Four in 35 years. That's a pretty low track record.

I have worked with organizations that have particularly difficult issues involving showers and dressing rooms. These include major defense contractor Boeing, not the most hippy-dippy of environments, and The New York City Department of Homeless Services, which has sex-segregated facilities that accommodate men and women separately. A fairly easy and inexpensive solution has always been found. I have advocated the use of five criteria that allow employers to easily and quickly address situations that come up. These are outlined in my book, Transgender Workplace Diversity.

Transphobic Reactions

The more rarefied arguments depend, for their force, on the transphobia that often tinges the opposition to ENDA, and fear of violence against women. These fear-mongering arguments suggest that transgender people are sexual predators seeking to gain access to women's spaces. A slightly less virulent argument of this strain is that, while transgender people are not themselves sexual predators, there are others who will take advantage of the law. Sexual predators will "game the system," making a false claim of right to be present in the women's bathroom in order to prey on women and girls.

In an article several years ago, the following example was given by the Thomas More Law Center, a non-profit law firm working with the Gainesville group: "For example, Tampa Police arrested Robert Johnson in February 2008 for hanging out in the women's bathroom at 'Lifestyle Fitness' and watching women in an undressed state. The 'gender identity' category, which is unique to the City of Gainesville, would provide legal protection to a similar offender in Gainesville."

The Thomas More Law Center is mistaken in its assertion that the gender identity category is unique to Gainesville, as Key West, Monroe County, West Palm Beach and Largo have gender identity civil rights laws. More significantly, notably absent from the example given is any false claim of gender identity. The accused, a teenager, claimed that he had not realized that he had entered the women's room, and, afraid to be seen, had hidden until he worked up the courage to emerge, when he was spotted. He did not invent a new gender identity in order to work up a defense for being in a female dressing room.

The "Gaming the System" Argument

I saw this "gaming the system" argument when I trained 300 homeless shelter staff for the New York City Department of Homeless Services in 2007. In each training session of about 20 people, there were one or two staff members who loudly proclaimed that they were not prejudiced, but that they had long experience with the homeless, and some guys would do anything to get with the women. I patiently explained that there were several documented examples of transgender people being abused in the system, and no examples of women being abused by transgender people (or those falsely claiming to be). They had no information to the contrary, but refused to budge. After a while, I sensed that their arguments had nothing to do with logic, and were related to stereotypes and fears that I could not reach. Ultimately, I had to argue that I was there to inform them about the Department's policy, not to change their minds.

I have heard this objection about "gaming the system" not only in the homeless shelter environment, where violence and fears of violence are daily realities, but also in corporate and school settings in which violence had never occurred. I addressed this argument in my book:

"Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: what if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.

My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law.

Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not. "

The logic of the argument that allowing transgender people to use a bathroom consistent with their gender will create a risk to women's safety has rested, in some recent instances, upon a claim that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This claim is disproven by experience.

There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S.

How many cases involving transgender people in bathrooms have there been in any year? Zero. How many false claims of gender identity transition have there been in order to commit sexual assault in any year? Zero.

Enough said.

For more on these topics, see Part I, which discusses concerns about pedophilia, Part II, which discusses fear of loss of religious freedom, another post discussing the possibility of a sudden flood of litigation and concerns about gay quotas, and Part III, discussing the transphobic "business necessity" argument.

Legal Analysis of ENDA: Section 3(a)(3) and 3(a)(4): Government Workers

2009-10-03T06:03:00.005-04:00

The first subsection of ENDA's Section 3(a)(3) covers private workers. (I've discussed that in a previous post: click here.) In this post, I will discuss protection for government workers. This section of ENDA consolidates several statutes protecting government workers from discrimination based on race, national origin, sex and religion. I've included the definitions of "employee" and "employer" as found in ENDA's Section 3(a)(3) and (4) at the bottom of this post.

The number of government workers has grown a lot over time. How many government employees are there? It's 2.7 million for the feds, 3.7 million for the states, and 10.9 million for local governments. That's a total of 17.3 million government workers. That is a substantial chunk of the approximately 60 million people in the US workforce. What does ENDA say about these workers?

This post is not very exciting, unless you are a government employee wondering whether you are covered by this section. Or unless you're into confusing redundant language with lots of exceptions that are later unexcepted in hard-to-find places.

There are a lot of different categories of government workers included here. Let's take this one step at a time.

Subsection (i): General coverage clause for state and local government employees

This is a little confusing, (okay, a lot) but the bottom line is that state and local government employees are covered. Follow the bouncing ball: Subsection (i) says that ENDA covers "an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f)." Here is problem 1. Section 701(f) in Title VII is different from the current text of 42 USC 2000e(f).

Here's what Section 701(f) says:

(f) The term "employee" means an individual employed by an employer.

Here's what 42 U.S.C. 2000e(f) says, according to Westlaw:

(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

The additional language was added in by the Civil Rights Act Amendments of 1972, which added government employees to Title VII. However, the Congressmembers didn't want Title VII to apply to elected or appointed public officials and their staffs, as they thought it would be too problematic.

I'm going to assume that ENDA is referring to the current version of the statute, not that originally enacted in Title VII. I don't have a good reason for doing that. Let's see how that works out.

There is one more wrinkle. ENDA says in Section 3(b) that, when reading Title VII for purposes of ENDA, one should not apply the definitions of "employee" and "employer" used in Title VII, but should use the definitions found in ENDA.

Application of Definitions- For purposes of this section, a reference in section 701 of the Civil Rights Act of 1964--

(1) to an employee or an employer shall be considered to refer to an employee (as defined in paragraph (3)) or an employer (as defined in paragraph (4)), respectively, except as provided in paragraph (2) below; and

(2) to an employer in subsection (f) of that section shall be considered to refer to an employer (as defined in paragraph (4)(A)).

So let's do all the substitutions. I will set it out below, including the words in the statute, but striking over the words to be substituted, and putting the new words in parentheses.

ENDA Section 3(a)(3):

(3) EMPLOYEE-

(A) IN GENERAL- the term `employee' means--

(i) ~~an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f))~~ (an individual employed by ~~an employer~~ (a person engaged in an industry affecting commerce (as ~~defined in section (701)(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)~~ [meaning] any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C.A. § 401 et seq.], and further includes any governmental industry, business, or activity.) [and that person] has 15 or more ~~employees (as defined in subparagraphs (A)(i) and (B) of paragraph (3)~~ employee[s] as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f))[ignore this infinite feedback loop] 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 (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986;), except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.);

I think that's right. Not entirely sure.

So after all that, employee = private employees in an industry affecting commerce with 15 or more employees, and government employees, except for elected and appointed public officials and their staffs (unless they're civil service) and not private club employees.

I note that the staffs of elected and appointed officials are included in following subsections of the definitions. I should also note that the section specifically covers US citizens employed abroad by US employers.

Subsection (ii) - Executive Branch Employees

Subsection (ii) refers to "a Presidential appointee or State employee to which section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16(a)(1)) applies."

42 USC 2000e-16 includes the following employees and applicants:

>military departments as defined in section 102 of Title 5 (i.e., The Department of the Army, The Department of the Navy and The Department of the Air Force) (this is referring to civilian employees - members of the military are specifically exempted in Section 7 of ENDA, also discussed below under subsection iii)

>executive agencies as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds) (i.e. including any executive department, government corporation, and independent establishment)

>United States Postal Service and the Postal Regulatory Commission
units of the Government of the District of Columbia having positions in the competitive service

>units of the judicial branch of the Federal Government having positions in the competitive service

>the Smithsonian Institution, the Government Printing Office, the Government Accountability Office, and the Library of Congress

This section does not apply to aliens employed outside the limits of the United States.

Subsection (iii) - Legislative Branch and some Executive Branch employees

Subsection (iii) refers to "a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301) or section 411(c) of title 3, United States Code"

2 USC 1301(3) refers to the following employees:

the House of Representatives
the Senate
the Office of Congressional Accessibility Services
the Capitol Police
the Congressional Budget Office
the Office of the Architect of the Capitol
the Office of the Attending Physician
the Office of Compliance
the Office of Technology Assessment

The other section mentioned, 3 U.S.C. 411(c), includes the following employees:

any employee of a unit of the executive branch, including the Executive Office of the President, whether appointed by the President or by any other appointing authority in the executive branch, who is not otherwise entitled to bring an action under any of the statutes referred to in subsection (a), but does not include any individual--

(A) whose appointment is made by and with the advice and consent of the Senate;

(B) who is appointed to an advisory committee, as defined in section 3(2) of the Federal Advisory Committee Act; or

(C) who is a member of the uniformed services.

Although this section specifically exempts any member of the uniformed services, there is a specific exemption in ENDA in section 7. It reads as follows:

(a) Armed Forces-

(1) EMPLOYMENT- In this Act, the term `employment' does not apply to the relationship between the United States and members of the Armed Forces.

(2) ARMED FORCES- In paragraph (1) the term `Armed Forces' means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

Subsection (iv) - State Officials, Political Appointees and Staff

(iv) an employee or applicant to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies. This is the part where the staffers of elected and appointed officials excepted from coverage in subsection (i) are added back in. The section that actually defines which employees are intended is 42 U.S.c. 2000e-16c(a):

>any individual chosen or appointed, by a person elected to public office in any State or political subdivision of any State by the qualified voters thereof--

>>(1) to be a member of the elected official's personal staff;

>>(2) to serve the elected official on the policymaking level; or

>>(3) to serve the elected official as an immediate advisor with respect to the exercise of the constitutional or legal powers of the office.

"Employment Agency" Definition Problem

There is another definitional problem. In ENDA's definition of "employment agency," it has the meaning given the term "in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(c))." However, section 701(c) is not the same as the current United States Code provision at 42 U.S.C. 2000e(c).

Here's how 701(c) reads (click here to see the full text of 701):

(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency of a State or political subdivision of a State, except that such term shall include the United States Employment Service and the system of State and local employment services receiving Federal assistance.

Here's how 42 U.S.C. 2000e(c) now reads as I obtained it from Westlaw:

(c) The term “employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

If you use 701(c) as originally written, then "employment agency" does not include government unemployment offices or labor bureaus that attempt to secure employment for people. If you use the current 42 U.S.C. 2000e(c) text, then "employment agency" does include such government unemployment offices and labor bureaus. An example of these would include the One Stop Career Centers authorized by the Workforce Investment Act of 1998, that make all kinds of services available to unemployed workers, including offer free phones, internet, recruiting services, and job referrals.

I assume that the text of 42 U.S.C. 2000e(c) is the one that would control, as it makes more sense in the context of a statute that explicitly includes the government workers that the original subsection (c) had excluded. But I could see a persuasive argument on the other side.

Sovereign Immunity Issues

The Supreme Court has made important rulings about whether Congress may cover state and local government workers in light of the 11th Amendment's grant of sovereign immunity to States from being subject to suit in federal courts. There are a lot of cases on this, but the following spring to mind. My discussion here is very incomplete, and just intended to give an idea of the issues involved. A lot more digging is required on this subject.

First is EEOC v. Wyoming, 460 U.S. 226, wherein the Court held that the Age Discrimination in Employment Act constituted a valid exercise of Congress’ Article I Commerce Clause power. ENDA partly relies on Article I Commerce power. So that's good for ENDA. But not good is Seminole Tribe of Fla. v. Florida, 517 U.S. 44, in which the Court held that Congress’ powers under Article I do not include the power to subject States to suit at the hands of private individuals. Only government agencies like the EEOC can sue the States since the 11th Amendment doesn't apply to the government. However, ENDA specifically relies on the 14th Amendment, in addition to the Commerce Clause. Well, In Fitzpatrick v. Bitzer, 427 U.S. 445, the Court said that Section 5 of the Fourteenth Amendment does grant Congress the authority to abrogate the States’ sovereign immunity. So that's good for ENDA. But in Kimel v. Florida, the Court said that the Fourteenth Amendment couldn't be used to justify age discrimination suits by private individuals against States because Congress didn't point to any specific history of unconstitutional conduct, and because age is not a suspect classification under the Equal Protection Clause. That is not so good for ENDA.

This issue merits another discussion. I would guess that ENDA will someday be challenged on this issue, and the answer will hinge on whether discrimination based on sexual orientation and gender identity has a sufficient level of factual findings of historical discrimination by Congress, and whether these are considered suspect classes.

---------------------------------

(3) EMPLOYEE-

(A) IN GENERAL- the term `employee' means--

(i) an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f));

(ii) a Presidential appointee or State employee to which section 302(a)(1) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e-16(a)(1)) applies;

(iii) a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 (2 U.S.C. 1301) or section 411(c) of title 3, United States Code; or

(iv) an employee or applicant to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(a)) applies.

(B) EXCEPTION- The provisions of this Act that apply to an employee or individual shall not apply to a volunteer who receives no compensation.

(4) EMPLOYER- The term `employer' means--

(A) a person engaged in an industry affecting commerce (as defined in section (701)(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or more employees (as defined in subparagraphs (A)(i) and (B) of paragraph (3)) 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 (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986;

(B) an employing authority to which section 302(a)(1) of the Government Employee Rights Act of 1991 applies;

(C) an employing office, as defined in section 101 of the Congressional Accountability Act of 1995 or section 411(c) of title 3, United States Code; or

(D) an entity to which section 717(a) of the Civil Rights Act of 1964 applies.

Liveblog on ENDA Congressional Hearing

2009-09-25T14:55:00.005-04:00

A Congressional Hearing was held on the Employment Non-Discrimination Act of 2009 this past Wednesday. I moderated a liveblog during the hearing at Bilerico.com. We had over 275 people watching with us during the event, and many asked good questions and made insightful comments.

Click here for the archived webcast and PDF testimony.
Click here for the Committee's blog, and comments. Click here for the Committee's YouTube channel.

ENDA House Committee Hearing Liveblog

ENDA Summary

2009-09-25T13:54:00.003-04:00

Here is a section by section summary of ENDA that I wrote.

1. NAME: This Act may be cited as the `Employment Non-Discrimination Act of 2009'.

2. PURPOSES: The purposes of the Act are to address the history of discrimination against LGBT people, to provide comprehensive protection across the US, and to provide protection under the Fourteenth Amendment and the Congressional power to regulate interstate commerce.

3. DEFINITIONS: (selected definitions appear here)

EMPLOYER - a person or organization engaged in an industry affecting interstate commerce who has 15 or more employees for at least 20 weeks, or most government offices. It excludes bona fide private membership clubs and volunteers.

GENDER IDENTITY - gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.

4. EMPLOYMENT DISCRIMINATION PROHIBITED.

(a) Employer Practices - It is an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate with respect to the compensation, terms, conditions, or privileges of employment; or

(2) to limit, segregate, or classify the employees or applicants in any way that would tend to deprive any individual of employment or adversely affect their status.

Discrimination is also prohibited on the basis of one’s association with those who are LGBT. Other organizations are also prohibited from discriminating, including employment agencies, labor unions, and training programs. The Act does not require or permit any preferential treatment or quotas Disparate impact lawsuits, which claim that employer actions have indirectly resulted in a reduced number of LGBT employees, are not permitted.

5. RETALIATION PROHIBITED.

Discrimination is also not permitted based on a complaint of discrimination, or participation in claims investigation.

6. RELIGIOUS EXEMPTION

The Act does not apply to organizations exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964. In his testimony at the Congressional hearing on September 23, 2009, Acting EEOC Stuart Ishimura stated his belief that this would exempt such religious organizations not only from penalties for discrimination on the basis of religion, but from penalties under ENDA for any reason.

7. MILITARY NONAPPLICATION AND VETERANS' PREFERENCES.

The Act does not apply to members of the Armed Forces, and does not change special rights for veterans

8. CONSTRUCTION.

(a) Employer Rules and Policies – The Act does not prohibit employer policies if they apply to everyone equally regardless of sexual orientation or gender identity. It does not limit sexual harassment charges if the policy applies to everyone equally.

It does not require employers to permit access to shared shower or dressing facilities if nudity is unavoidable. The employer must provide access to facilities not inconsistent with an employee’s gender identity. However, construction of additional facilities shall not be required. Employers may have reasonable dress codes during working hours, but must permit employees who are undergoing or have undergone gender transition to adhere to the dress code of the new gender.

The Act does not require benefits for married couples to be extended to those who are unmarried, and marriage is defined as it is in DOMA.

9. STATISTICS COLLECTION PROHIBITED.

The EEOC shall not collect statistics on actual or perceived sexual orientation or gender identity, or compel the collection of such statistics by covered entities.

10. ENFORCEMENT.

The EEOC has the same powers it has under Title VII to enforce the Act. Government employers also have the same powers to enforce the Act, as they have under their current personnel codes. Courts have the same jurisdiction and powers as under Title VII and corresponding government personnel codes. The procedures and remedies for claims under ENDA are likewise the same.

11. STATE AND FEDERAL IMMUNITY.

States and state officials are not be immune under the 11th amendment from an ENDA suit in federal court.

12. ATTORNEYS' FEES.

The EEOC, government officials and boards in charge of personnel matters (except for the Attorney General), and courts have discretion to award reasonable attorney fees to a prevailing party, except for the EEOC or the United States

.

13. POSTING NOTICES.

Employers shall post notices that describe the applicable provisions.

14. REGULATIONS.

The EEOC and government officials in charge of personnel matters have authority to issue regulations to carry out this Act.

15. RELATIONSHIP TO OTHER LAWS.

This Act shall not invalidate other federal, state or local laws.

16. SEVERABILITY.

If any provision of this Act is held to be invalid, the remainder of the Act shall not be affected by the invalidity.

17. EFFECTIVE DATE.

This Act shall take effect on the date that is 6 months after the date of enactment of this Act and shall not apply to conduct occurring before the effective date.

The original text may be found at http://thomas.loc.gov, and search for Bill Number HR3017 or S1584

Liveblogging the Congressional ENDA Hearing Weds morning 10am

2009-09-22T19:01:00.002-04:00

A major Congressional hearing is being held Wednesday morning regarding ENDA.

If you are interested in learning more about ENDA, join me at 10am until about noon to view and liveblog the Congressional Hearing on the Employment Non-Discrimination Act. You'll be able to watch, comment, and interact with other viewers.

Click here for more information: http://bit.ly/18XWHW

Arguments Against ENDA (Part III)

2009-09-21T17:04:00.004-04:00

One of the major underlying and often-unstated arguments against ENDA, in addition to concerns about pedophilia, fear of loss of religious freedom a sudden flood of litigation and concerns about gay quotas, is transphobia - an irrational fear of transgender people.

In simple terms, this is the "yuck" factor. This prejudice is not rational, and there is no reasoning with it. It is as simple as "I don't like you and there's nothing you can do to change that."

Transphobia often gets inserted into the debate in ways that puts a mask on it and erases its tracks. The debaters disguise the prejudice, but rely upon prejudice nonetheless. They may themselves be quite well-meaning, and fail to realize that they themselves are prejudiced.

The transphobia in such arguments is disguised by avoiding any reference to personal intolerance. It is instead exchanged for an impersonal "cultural non-acceptance" argument, which looks and sounds less ugly. Such arguments assume there is a universal reaction against the inclusion of trans people in the workforce.

By attributing the prejudice to others, by asserting that trans employees will not be accepted by co-workers, vendors, clients, or customers, causing business disruption and inefficiency, ENDA opponents raise the same objection used against people of color and women in the workforce. "It's not me, the customers won't like it." "I can't have this person working for me, I'll go out of business." The same argument can be used against gays and lesbians, but no one quite believes that one anymore.

The formal term for the transphobic argument is the "business necessity" objection. It argues that the inclusion of job protections based on gender identity will reduce sales. Its premise is that clients and customers will stop giving business to a company that uses an openly transgender person, justifying discrimination based on gender identity. The same type of argument can be and has been extended to sexual orientation, race, national origin, sex and religion. However, it seems to have a particular resonance regarding gender identity. It is particularly effective among those who do not like to think themselves prejudiced but know somehow that there is a problem with transgender inclusion, which they can't quite put their finger on.

This "business necessity" objection, however stated, and to whomever attributed, is a pretext for transphobic prejudice. Far from providing a convincing argument against ENDA, it is a significant demonstration of the need for a law: many employers cannot be counted upon to do the right thing by themselves. It also demonstrates a lack of knowledge about how gender operates in the workplace as an axis of discrimination.

What is "Gender Identity" in ENDA?

In terms of the specifics of ENDA, it is important to note that the inclusion of "gender identity" protects more than transgender people. It also covers anyone who is dismissed or harassed because of gender, the social, psychological and behavioral aspects of sex differentiation. The term "gender identity" is defined in Section 3(6) of ENDA: "The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." This definition is similar to definitions found in 13 state laws and over 100 local ordinances since 1975.

One aspect of this, "gender identity," refers to our internal awareness of our gender. In other words, I identify as a female, and this self-identification may or may not relate to my sex designated at birth. "Gender-related appearance or mannerisms" refers to our outward expressions of gender - clothing, body styling or behavior. A person who is harassed or fired from a job because the boss or co-workers don't like the way they express their gender is protected by ENDA, whether transgender or cisgender.

This would include a man who is harassed or fired because every man on the job -- but him -- acts like a "regular" guy. It would also include a man who is harrased or fired because his masculinity is that of a macho man, but he's working in an environment where the boss doesn't like how he enacts his gender. A woman who is not into makeup and teased hair, and who is harassed or fired as a result, would be protected, as would a woman who is harassed or fired because she likes makeup and teased hair and finds herself harassed or fired because of that.

ENDA is designed to remove judgments about our gender from the job qualifications.

In one sense, this is not new law. The US courts, including the US Supreme Court, have recognized for quite a while now that "sex discrimination," illegal since 1964, includes gender discrimination -- adverse treatment because of stereotypes about sex. This law has been extended to transgender people by many lower federal courts. Many state and local laws act in a similar fashion. ENDA recognizes and consolidates this existing gender-based protection for all, whether transgender or cisgender.

The Prejudice Factor

The formal pretexts that are often asserted against transgender employees include the idea that their acceptance in the workforce will result in a loss of sales or, in organizations not focused on sales, a reduction in efficiency. This loss of sales or efficiency allegedly stems from the fact that they will not be tolerated by co-workers, clients, customers, vendors, and others in the workplace environment. In other words, it's not me that's prejudiced, but my assumption is that many others are. How could they not be? I mean, look at these people, for Pete's sake. Etc., etc.

In my experience, as a consultant to many business organizations with transitioning employees, large and small, I have never seen or heard of a situation where a business actually lost sales due to a transgender employee. These concerns get worked out in collaboration with management. There are ways of addressing all sorts of workplaces with long-term clients, with short-term customers, and in guest-service environments. I've known of situations where millions - hundreds of millions - of dollars rested on retaining the goodwill of clients during a high-ranking employee's transition. Every client in that situation was retained. I've known of small businesses where business viability hung in the balance, because the transgender employee was as key to the business as the goodwill of the customers. It worked and the business continues to succeed.

I also, unfortunately, know of other situations where employers didn't wait to see how things would go, and the trans employee was fired. In many cases, trans people find it impossible to get a job, despite years of experience and making hundreds of job applications. The statistics are appalling.

If you spend some time thinking about it, you can probably come up with some ways to address the issues yourself from the employer's point of view, even if you're not an expert in transgender workplace issues. If you want to keep good will, then you must act with good will, and that is what's missing in the transphobic argument of "business necessity."

The "business necessity" argument also appears to assume that ENDA will void the need for transgender employees to perform up to standard at achieving their work goals. This is not in the least true. If a transgender employee has poor work performance, ENDA will not protect them. ENDA is only designed to ensure that their gender is not a factor in management decisions, and that they are free from harassment. I have known situations in which transgender employees have lost their jobs based on work performance issues, in jurisdictions with ENDA type laws. They were not given a free pass by any means, and none is argued for here.

What Happens When You Assume?
The underlying assumption here is that others will be prejudiced, and that's a good reason to deny transgender people jobs. It is not a good reason.

If there's any area that's particularly sensitive to the siren lure of the transphobic argument, it is the military. Transgender people are not allowed to serve openly in the military. It is easy to see how a business that works with the military, like a defense contractor, could argue that the assumed transphobia of the military means they will lose sales if forced to hire a transgender employee. If the "business necessity" objection is going to be valid anywhere, it's going to be with the military.

And yet, a federal court recently blew this objection out of the water in a case under the current federal anti-discrimination law. A transgender employee argued that the rescission of her job offer, because her employer learned she was in gender transition, was covered as sex discrimination. The Court agreed. She also argued that the "business necessity" objections to her hiring, based on the assumed intolerance of the military, were a pretext for discrimination. The Court agreed.

In Schroer v. Billington, the United States Federal District Court for the District of Columbia addressed a situation where Schroer, a highly decorated veteran with excellent qualifications received a job offer at the Library of Congress as a counter-terrorism expert. When they found out she was transitioning from male to female, they rescinded the offer.

During the trial, the Library's hiring manager thought that Schroer's gender transition might diminish her credibility with Members of Congress, whom she would be called upon to serve, and that she might be unable to maintain contacts in the military, an important qualification for the job. The judge dispatched these business necessity objections with the precision of a razor-sharp legal mind.

"The Library's final two proffered legitimate nondiscriminatory reasons -- that Schroer might lack credibility with Members of Congress, and that she might be unable to maintain contacts in the military -- were explicitly based on her gender non-conformity and her transition from male to female and are facially discriminatory as a matter of law. Deference to the real or presumed biases of others is discrimination, no less than if an employer acts on behalf of his own prejudices. See Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1270 (8th Cir. 1981) (firing employee in response to racially charged, unverified customer complaint is direct evidence of racial discrimination by employer); cf. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981) ("stereotypic impressions of male and female roles do not qualify gender as a [bona fide occupational qualification]"); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir. 1971) (same).

According to the United States District Court for the District of Columbia, it is now illegal to discriminate against a transgender employee based on "business necessity" objections, even where there is a very strong argument for the assumed transphobia of the clients. The court said this is the same type of flawed reasoning used by those who argued customer bias as a reason for race and sex discrimination. The Court's reasoning applies with the same force to ENDA. The argument that others are assumed to be prejudiced against transgender people, creating a "business necessity" objection to the gender identity protections of ENDA, is nothing more than a cover for personal prejudice. It is transphobia wearing a mask labelled "Business Necessity." This is true regardless of protestations of innocence of any prejudice, and the more violent the protest, the more apparent the transphobia. Prejudice, like superstition, by its very definition requires ignorance as a backdrop. If you know you're prejudiced, you're not.

In fact, I know a number of transgender people who work for military vendors and defense contractors. They interface directly with military personnel, and they have been treated very cordially. Does this mean the military is transgender-friendly? I wouldn't be so bold, but I also wouldn't be so bold as to say all members of the military are so transphobic that anyone doing business with them needs to get rid of transgender employees. It's an unwarranted assumption.

The transphobic "business necessity" objection to ENDA, however well meaning it may be, is based on assumptions stemming from undiscovered personal prejudices.

For more on these topics, see Part I, which discusses concerns about pedophilia, Part II, which discusses fear of loss of religious freedom, and a post discussing the possibility of a sudden flood of litigation and concerns about gay quotas.

Arguments Against ENDA (Part II)

2009-09-13T19:38:00.004-04:00

One of the major arguments against ENDA is a concern that the government is infringing the right to practice religion. Fortunately, ENDA does not prohibit any religious beliefs or expressions protected by the First Amendment. However, that will not stop the concerns that people have. Today we will take at look at religious arguments against ENDA.

Religious opponents of ENDA are using the "reverse-discrimination" argument. The suggestion here is that ENDA will force churches and religious schools who have religious objections to hire lesbians, gays, bisexuals and transgenders.

In addition, the argument is that by forbidding religious employers from dismissing LGBT workers from their jobs, they are being prohibited from practicing their religion. Furthermore, these opponents say that ENDA will call for the firing of any employees who disapprove of homosexuality and prohibit any religious symbols in the workplace, such as the Bible, because the religion they symbolize condemns homosexuality. These arguments are incorrect. They can be rebutted effectively. But they are tricky, because the line between religious freedom and religious intolerance has always been a slippery one.

There are a lot of intertwined arguments here, and the law with regard to the First Amendment's freedom of religion is particularly thorny. Let's take them one at a time.

"Religious Schools, Camps And Other Religious Organizations Will Be Forced To Embrace Homosexuals Or Be Liable And Lose Tax-Exempt Status."

The Christian Post recently filed an article that implies that ENDA will require churches to hire gay employees.

If ENDA is passed, church-related organizations and facilities can lose their tax-exempt status if they refuse to hire a gay employee, Deo of the New Jersey Family Policy Council warned.

He pointed to a case in 2007 when a New Jersey Methodist-owned camp facility refused to allow a gay couple to use one of their buildings for a civil union ceremony. The result of a court battle was the church losing its tax-exempt status for the beachfront property.

"This bill will put para-church organizations and people of faith who own secular, for-profit businesses in jeopardy of liability if they hire or fire based on their religious beliefs or moral convictions about homosexual behavior," said Ashley Horne, federal policy analyst for Focus on the Family Action on Friday. "This is yet another attack on religious liberty in a long string and must be stopped."

From a legal standpoint, that would indeed be troubling, if it were true that churches would be forced to hire people in their religious places of worship against their religious beliefs. While I want to end rampant discrimination against LGBT people, I also believe in religious freedom. That means people must be allowed to believe doctrines whether I like them or not, and to worship and to teach and to hire ministers as they see fit.

However, Mr. Deo's representations as to the facts of the case are far from complete, and involve a very different situation from that of ENDA. The Methodist-owned "camp" was not a haven for religious young campers, but the "Ocean Grove Camp Meeting Association," which is neither a camp nor a church. Rather, it is an organization run by Methodists that owns all of the land in Ocean Grove, New Jersey, most of which is used for homes, stores, restaurants, hotels, and beach boardwalks. The Association made the beach, the boardwalk, and the boardwalk pavilion into public access property. Many weddings were held in the pavilion. When a gay couple wished to have a commitment ceremony in the wedding hall, the Association refused to accommodate them.

This is very different from the employment situations contemplated by ENDA. Unlike the public accommodations section of the New Jersey Law Against Discrimination, which has no exemption for religious organizations, ENDA has specific provisions detailing exemptions for churches and religious educational institutions.

It should also be noted that, although the Association initially lost its tax exemption, the State of New Jersey reinstated the Association's exemption from property tax for the beach and the rest of the boardwalk, but stated that it could not continue to exempt the pavilion as it was not truly open to the public.

Box Turtle Bulletin has the full story.

ENDA Does Not Apply To Religions Organizations Exempt Under Title VII

ENDA specifically notes that it does not apply to a religious organization exempt under the religious discrimination provisions of Title VII, the current federal employment non-discrimination law. Such organizations are allowed to discriminate on the basis of religion, and ENDA would not affect them. A religious organization, such as a church, and a religious educational institution, such as a school or camp, is permitted to discriminate on the basis of religion for any employee.

What constitutes a religious educational institution that is exempt from religious discrimination under ENDA? According to the statute, it is exempt if it is owned, supported, controlled, or managed by a particular religion or religious organization, in whole or in part. That's quite broad, because it means that, so long as the religious organization plays a part in the institution, it is exempt. Additionally, even if a religious organization plays no part in the institution, the institution will nonetheless be exempt if its curriculum is directed toward the propagation of a particular religion. That is very broad protection for religious schools, camps and other educational institutions.

Congressman Bill Young Suggests That Religious Exemptions Cause Problems

Strangely enough, Representative Bill Young argues that this generous exemption clause is dangerous, because it means that the government will start investigating religious educational institutions.

From: Congressman Bill Young
Sent: Wednesday, July 8, 2009 4:54:50 PM
Subject: Re: Please Co-Sponsor the Employment Non-Discrimination Act

July 8, 2009

...ENDA did not provide adequate exemptions for religious organizations, which could have resulted in limitations on the hiring prerogatives of non-denominational religious schools. ENDA did provide exemptions for the armed forces and for religious organizations. The definition of religious organization, however, was limited to educational institutions that are at least substantially controlled, managed, owned, or supported by a particular religion or use a curriculum that is directed toward the propagation of a particular religion. This narrow definition still failed to cover non-denominational religious schools and invited the federal government to investigate the religious nature of schools' curricula.

With all due respect to Congressman Young, his argument is of the disingenuous "heads I win, tails you lose" variety. The exemption for religious schools that he cites is not "narrow." It exempts any school or camp that is religiously affiliated, and I am unsure how such a definition could be made any broader. He is arguing that schools can never be the subject of anti-discrimination law because any religious exemption for schools could require someone at some point to look and see whether an educational institution is religiously affiliated. He's pointing and shouting "get your government hands off my religion!!" while the government has its hands in its lap.

Congressman Young's argument is an argument against any law applying to a religious school, not an argument against ENDA. Would he say that a requirement that a religious school have an educationally sound curriculum is a violation of religious freedom, because the government might have to take a peek at the school's curriculum? Sounds like he is arguing yes.

Would he say that the religious exemption in Title VII, the current federal anti-discrimination statute, is a violation of religious freedom? Sounds like he is arguing yes.

The religious exemption in ENDA that he so despises is exactly the same as the religious exemption in Title VII.

It makes eminent sense to exempt religious schools that have a sincere belief that homosexuality is wrong from the requirement of hiring gay employees. At the same time, schools that are not part of a religious organization or religious propagation should not have a pass when it comes to anti-discrimination law.

Such determinations are routinely made now. Some schools are now exempted from government requirements because of their religious nature. That is not a violation of religious freedom. And if that is not a violation of religious freedom, neither is ENDA.

ENDA Exempts Jobs With A Bona Fide Occupational Qualification

There is an exception in Title VII and ENDA even for private employers, and this shows the lengths to which these non-discrimination laws try to accommodate a private non-church employer involved in religious commerce.

If it is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, then the employer may restrict its hiring to religious believers.

For example, if I'm hiring someone to sell Bibles, I can restrict my hiring to those who believe as I do. If I'm hiring a construction worker, then I need to look at her skills, not her sex or her sexual orientation.

Thus, any employer, even if it is not itself a church or a religious educational institution, can restrict its hiring to those who have certain beliefs for those jobs that require such beliefs.

There is a very large degree of religious freedom built into ENDA.

But some people will not be happy no matter what.

It's Against My Religion To Hire Those People

One of the major arguments of ENDA's opponents is that employers, which are owned or managed by religious people whose religion prohibits homosexuality, should be permitted to shun LGBT employees.

The Christian Post said of ENDA:

...its opponents argue that it is in fact religious employers who disagree with the homosexual lifestyle that are being discriminated against.

Ashley Horne, federal policy analyst for Focus on the Family Action, said ENDA's passage would threaten religious freedoms. "Gay rights activists have wanted this bill for a long time," she said, "to keep religious employers from being able to hire and fire based on their moral convictions."

The American Family Association is saying that ENDA "turns private sin into a public right."

"It takes away the idea that sex is created by God in two different categories -- male and female -- and it makes it entirely a radical, self-determined persona. The larger problem of this is it turns private sin into a public right," he contends. "It puts Christian and Jewish employers on the defensive, saying that if you don't give in and accord civil-rights privileges based on behavior that you know is sinful, 'We're coming after you. We're going to fine you. We're going to punish you.'"

According to Knight, the bill "criminalizes God's biblical morality in the workplace."

The question here is whether, in a democracy, the majority can decide that shunning an entire group of people and making them unemployable is a social problem requiring redress. The answer here is yes, that in a democracy in the 21st century, in supposedly the leader of the free world and the most enlightened country in the world that is vigorously exporting its values to the rest of the world, it is a social problem for a large group of people to be the subject of open employment discrimination. Of course the people doing the shunning are going to object. It is a rejection of their values, and they are not going to like it. I wouldn't expect them to like it. That's the point of the law. That's why the "anti-shunning" law is needed in the first place.

But here, the shunners are wrapping their values in the cloth of religious faith, loudly proclaiming that God wants them to shun this group, and pointing to the First Amendment as their justification.

Our Constitution strikes a balance between religion and the state. The state must stay out of religion. But when my religion intrudes into the marketplace, into the public square, that is a different matter. When I, as a private person and not as a church, decide to enter the public marketplace as a secular employer, then my behavior needs to conform to certain requirements. I can't start sacrificing goats in the public square, and protesting that it's my religion. I can't start hitting certain people I don't like over the head with a rubber chicken and saying God requires it, so hands off.

If the legislature decides that shunning of certain kinds of people creates a social problem within its competence to redress, and people want to put themselves out in the public marketplace as secular employers, it has not heretofore been considered a good excuse that one's religion requires shunning those people. Shun, shun, shun!

The "it's against my religion to hire these people" argument has been tried before, and the courts have soundly rejected it in the context of other forms of discrimination. There are some who are going to argue that they don't want to hire LGBT people, not because they are a church or have a bona fide occupational qualification, but because "it's against my religion" and I only want to hire people who are like me.

This question was dispositively disposed of after the passage of the Civil Rights Act of 1964. The state has the right to prohibit discrimination based on religion, and it is not a violation of the First Amendment freedom of religion to do so. Under Title VII, I do not have a right to discriminate against Muslims because I am a Hindu. I do not have a right to say "you can't work here because I only want to hire Jews." I do not have the right to demote you because you decided to change your observance of the Sabbath from Sunday to Saturday, or because I saw you eating a ham sandwich that violates my religion, or because you wear a religious garb that's different from my religious garb.

This issue is little different from those who argued that their extremist views required discrimination based on race. As the US Supreme Court said in Runyon v. McCrary (1976), there is a First Amendment right to believe in discrimination.

But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle. As the Court stated in Norwood v. Harrison, "the Constitution . . . places no value on discrimination," and while "[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections...

Employers Will Be Forced To Punish Employees Who Disagree With Homosexuality

This argument concerns another facet of the workplace environment: creation of a hostile environment. In the early years of the Civil Rights Act of 1964, after employers were forced to hire people of races, sexes and religions that they used to shun, the co-workers often made life hell for those new employees. When the employees brought this harassment to the attention of employers, those employers shrugged their shoulders and said "what can I do?" This required a new dimension of non-discrimination law: the hostile environment claim.

When ENDA passes, employers will be required to respond to harassment of gay employees. Thus, not only will employers be required to hire LGBT people, they will also be required to protect them from harassment. To the extent that harassment is religiously motivated, then employers with religious beliefs against homosexuality may indeed find themselves in a position where they are forced to punish harassers who believe as they do.

Opponents of ENDA object because they believe that anti-gay harassment is protected as an expression of religion.

Focus on the Family sent a letter to Congress that says, among other things, "What will happen when homosexual or "transgender" employees object to: religious articles on employees' desks; water cooler discussions about biblical morality; Bible verses taped to cubicle walls; fliers on company bulletin boards advertising discussions concerning traditional marriage? This is already happening in states and municipalities with ENDAtype laws and many of these cases are in litigation."

Americans For Truth About Homosexuality have written about an actress who was fired because of her religious beliefs against homosexuality.

Actress Patricia Mauceri says she was fired and abruptly replaced for objecting to a gay storyline because of her religious beliefs.
...
Mauceri, 59, a devout Christian, told FOX News that character Vega's gay-friendly dialogue was not in line with the character she helped create by drawing on her own faith.
...
Mauceri said she was replaced despite offering changes to the script and hoping for a compromise.

It is true that employers will be required to take action against harassers, regardless of whether their motivation is religious or not. There is, however, a clear line between belief and harassment. No one is going to take away your Bible. But you can't hit me over the head with it, either.

ENDA cannot tell anyone what to believe, nor can employers. At the same time, gay employees have the right to live free from harassment on the job. In fact, it is now the law and has been since 1964 that people of all religions and walks of life have the right to be free from harassment on the job based on religion.

Co-workers who want to march up to you and say "You are going to hell to burn in the eternal lake of fire!" are not be free to do so. Will this prohibit a private employer from having a Christmas tree, because some Christian sects condemn homosexuals? No. Will it prohibit a co-worker from saying "I'm a Christian."? No. But it will prohibit an attack on someone whether that attack is religiously motivated or not.

Anti-gay harassment is not an issue of freedom of religion.

"Unlike Other Protected Classes, Like Race And Religion, Sexual Orientation Is A Behavior!"

The most illogical argument against ENDA is the idea that sexual orientation and gender identity are not worthy of legislative protection because they are unlike the other currently protected categories: race, sex, national origin and religion. The attempt is made to distinguish sexual orientation and gender identity from these. The claim is that the current federal law protects identities, not behaviors.

For example, the Christian Post said of ENDA:

"It's just a very dangerous situation when we start passing laws based on people's behaviors," said Len Deo, president of the New Jersey Family Policy Council, to Focus on the Family's CitizenLink.
...
Bishop Harry R. Jackson, Jr., a church leader from the Washington, D.C., area, argues "sexual orientation" should not be included in the federally protected class list because unlike the other characteristics, a person's sexual orientation can change.

"I find it is an insult for myself as an African American that you are granting through this law special protection for sexual orientation that might only be imagined," said the senior pastor of the 3,000-member Hope Christian Church, during a press conference opposing ENDA.

That's not a logical argument. Religion is a currently protected class, and it can change any time. It is not something inborn. It is acquired, and it is a belief system that requires certain behaviors, and yet it is protected from discrimination by federal law. It is impossible to justify the idea that sexual orientation and gender identity are entitled to less protection than religion because the former involves behaviors but the latter does not.

And yet, we see this argument coming from the mouths of Congressmembers.

From Pam's House Blend:

Blender Stevious attended a town hall meeting held at IBM in Austin by Congressman John Carter (R-TX-31), and the topic of the pol's no vote on ENDA. The answer that Carter gave can be summed up as sexual orientation isn't an "attribute" deserving of anti-discrimination protections.

The bottom line of this long discussion is that ENDA does not violate freedom of religion. It prohibits employment discrimination against LGBT people, but does not stop anyone from believing anything they like about being lesbian, gay, bisexual or transgender.

What it does is to give LGBT people the right to have a job.

This should not be a controversial point in a country that promotes the value of work and the importance of a healthy economy

Click here to see Part I of this series, in which we took a look at the arguments that "sexual orientation" is cover for pedophilia, and saw that it was, in actuality, a cover for the confusion that some people have regarding the meaning of the well-defined term "sexual orientation."

National LGBT Bar Association Panel: Constitutional Gender

2009-09-11T07:08:00.004-04:00

The National LGBT Bar Association Conference begins today. Much interesting grist for the mill here.

I will be presenting in a panel on constitutional rights to gender autonomy today, along with three highly-regarded law professors whose work in this area is very interesting.

My presentation will center on the right to privacy, and the full-length article will be coming out this Fall in the Touro Journal of Gender, Race and Ethnicity. The title of the article is "Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas."

Others will discuss rights to due process, equal protection, the First Amendment and question whether positing "a right to gender autonomy" is the right question in the first place.

In a nutshell, my opinion is that there is a constellation of issues that comprise a potential "right to gender autonomy," and that the "right to privacy" is the wellspring.

There are two strands of constitutional jurisprudence from which this right develops: the first is a right of self-determination of gender, based on privacy cases that promoted self-determination of private decision-making of important life choices, and the other is a right of self-identification of gender, based on other privacy cases that promoted privacy protection of sensitive information .

“The right to gender autonomy” may therefore be defined as the right of self-determination of one’s gender, free from state control, and the right to self-identify as that gender, free from state contradiction.

However, there is a problem with this idea: it's not clear how it squares with the US Supreme Court's landmark 2003 decision in Lawrence v. Texas, which found that the right to privacy protects gay relationships from being marked as criminal by the state. That case has been taken by many as meaning that the right to privacy hinges on the relationship aspect, which marks a "fundamental" right. Since being transgender involves no relationship aspect, upon what is the state intruding that would be considered private?

I started looking at this issue in my 2001 law review article, in which I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy”, an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.

This article looks to review the work that has been done since that time on the issue of substantive due process as it has been discussed in regard to the right of gender autonomy, and also focusing specifically on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas3, impacts this putative right to gender autonomy.

I suggest that my 2001 argument in favor of gender autonomy as a fundamental right, while potentially valid, has been devitalized by Lawrence. Instead, Lawrence has made a “rational basis” standard of review not only possible for the right of gender autonomy, but much stronger than an argument in favor of a “fundamental right” approach, or any attempt to mix the two.

This “heightened” rational basis, an approach that has previously been seen in equal protection jurisprudence as “minimal scrutiny with bite,” clarifies the ambiguities and opacity that have plagued interpretation of Lawrence. It sidesteps the problems created by a judiciary that is looking to avoid recognition of new “fundamental rights.”

If this is correct, then the emphasis of advocate of gender autonomy should not be on trying to prove the existence of a “fundamental right,” but on trying to identify the putative state interests that can be asserted in favor of gender regulations that refuses to recognize sex reassignment, and explaining how they are either illegitimate or have insufficient rational nexus to the law.

Legal and social advocates for a right of gender autonomy should further pursue detailing the factual record and historical analysis that demonstrates the long history of legal and social gender autonomy.

You can download the materials for the session in a zip file by clicking here.

Arguments Against ENDA (Part I)

2009-09-08T21:16:00.002-04:00

No one in the national media is yet focusing much on the upcoming Employment Non-Discrimination Act, and neither the proponents on the left nor the opponents on the rights have said much either. But there is much to be said, and sooner or later, the war of words will begin.

The most common argument is that ENDA's terms are not sufficiently well-defined, leading some to be concerned that it could protect pedophiles and others whose sexuality is criminal in nature.

This argument assumes that "sexual orientation," as defined in ENDA, is similar to more ambiguous phrases, such as "sexual preference" or "sexual lifestyle." However, the term used, "sexual orientation," does not include sexuality of a criminal nature.

To some extent, arguing that "sexual orientation" includes any type of "sexual preference" is a bit like arguing that laws protecting against race discrimination will include race car drivers.

Such concerns are hinted at in this portion of a letter from Representative Howard Coble, 6th District of North Carolina:

This bill has become mired in controversy over definitions of discrimination and the individuals covered. As a result, the bill was not enacted and expired at the conclusion of the 110th Congress.

We remained concerned that creating new constitutionally protected classes will undermind (sic) existing equal protection laws. We are also concerned that forcing employees to pursue discrimination claims in feeral (sic) court could actually prevent many possible victims from asserting their rights. Finally, many employers who support nondiscrimination policies oppose ENDA because it will create new uncertain legal liabilities.

And here's a letter from Congressman Bill Young of Florida:

From: Congressman Bill Young
Sent: Wednesday, July 8, 2009 4:54:50 PM
Subject: Re: Please Co-Sponsor the Employment Non-Discrimination Act

July 8, 2009

...While I feel that discrimination in the workplace should not be tolerated in any capacity, I was unable to support this particular version of ENDA because it failed to define the term "perceived" sexual orientation, nor does the Civil Rights Act of 1964 include or define that term, and that the inclusion of a vague term would have led to uncertainty and increased litigation.

"Homosexuality" Does Not Refer to Pedophiles

In referring to "controversy over definitions and the individuals covered," these Congressmen are alluding to the arguments made by such organizations as The Concerned Women for America, who have argued that: "While pedophiles are neither expressly included in nor excluded from ENDA's provisions, they will have a conceivable argument for special protection as homosexuals who merely prefer younger partners."

This argument cannot hold in the face of the definitions found in the bill in Section 3(a)(9):

(9) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality, heterosexuality, or bisexuality.

Thus, "sexual orientation" is specifically defined in a way that precludes the argument that it can refer to "sexual preference for children." The terms "homosexuality, heterosexuality or bisexuality" are quite well-defined, and are quite distinct from vague phrases like "sexual preference," or "sexual lifestyle."

Here's the Oxford English Dictionary definition of homosexual as a noun: "A person who has a sexual propensity for his or her own sex; esp. one whose sexual desires are directed wholly or largely towards people of the same sex."

It is interesting in that connection that a couple of lines down, the definition includes the following: "homosexual panic n. orig. Psychol. (chiefly among men) uncontrollable fear or anxiety as a reaction to one's own or another's homosexuality."

The American Heritage Dictionary has a similar definition: " Of, relating to, or having a sexual orientation to persons of the same sex."

This reminds me of the flap over the Americans With Disabilities Act in the late 80s. Senator Jesse Helms was afraid that prohibiting discrimination against people with disabilities might include homosexuals and pedophiles and transsexuals. They were going to hold up the entire bill to help people with disabilities because of this homosexual panic.

Helms made them include the following provisions:

Sec. 12211. Definitions

(a) Homosexuality and bisexuality
For purposes of the definition of "disability" in section
2102(2) of this title, homosexuality and bisexuality are not
impairments and as such are not disabilities under this chapter.
(b) Certain conditions
Under this chapter, the term "disability" shall not include -
(1) transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) compulsive gambling, kleptomania, or pyromania; or
(3) psychoactive substance use disorders resulting from current
illegal use of drugs.

Was "homosexuality" further defined in the ADA? No. There was no concern at that time over whether it was clear enough what "homosexuality" meant. In fact, none of the terms, including "gender identity," were defined there. It was clear enough to Senator Jesse Helms what these things meant then. It should be clear enough now.

In addition, Senator Helm's language clearly distinguished homosexuality and pedophilia as separate categories, as both were included separately. If they were the same thing, then they wouldn't need to be stated separately.

What Is Pedophilia?

Pedophilia refers to those who are sexually aroused by the thought of sex with prepubescent children, a reference to children under 13 years of age. (See ICD Section F65.4). This is a concept quite different from that of sexual orientation, the desire for a romantic partner of a particular sex. Researchers have been unable to identify the prevalence of pedophilia in the US population. A 2007 article in the Mayo Clinic Proceedings (82(4):457-471) implies that unwanted sexual touching of young females is twice as prevalent as among young males.

Beyond the social and moral, there is a particularly important legal distinction between pedophilia and homosexuality - the first is illegal and the second is not. Much could be written on this topic, but someone who engages in pedophilia is committing the crime of sexual assault, whereas being gay with another consensual adult is not criminal behavior.

ENDA only prohibits sexual orientation job discrimination if it is based on one's sexual orientation, but does not do so if the employer bases it on one's predilection for a criminal behavior, such as sex with children. The same would hold true whether the employee's pedophilia extended to children of the same sex, opposite sex or both.

Is It Possible To Interpret "Perceived" Sexual Orientation As Extending to Pedophiles? Answer: No.

The "perceived" language that Rep. Young fears is so undefined and will result in a flood of lawsuits is similar to the "regarded as" language used in the Americans With Disabilities Act. Many courts have looked at such provisions before, many times, in both disability statutes and state civil rights statutes, and never found the meaning of "homosexual" to be vague or ambiguous. The "perceived" language is also used in many state statutes that prohibit sexual orientation discrimination, such as California. The intent of this language is to prohibit a defense based on the argument that the employee is not, in fact, gay, and therefore, no anti-gay discrimination could have taken place. The "perception" must be one that refers to the person's "sexual orientation," not their "sexual preferences" for children, goats, or whatever. It makes no sense to argue that "sexual orientation" discrimination includes pedophiles.

The Supreme Court of Washington addressed this issue a few years ago in the context of same sex marriage, with one of the Justices lambasting "the astonishing and scientifically faulty notion that homosexuals are often pedophiles." In that 2006 case, Andersen v. King County, Justice Bridge criticized unscientific testimony from the "Family Council," relaying abstracts of biased studies purporting to find that a high percentage of gay men are pedophiles. As Justice Bridge stated, "In fact, this corrosive stereotype has been debunked by noted experts in the field of psychology and in courts alike," citing Marc E. Elovitz, Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 DUKE J. GENDER L. & POL'Y 207, 216-17 & n.55 (1995) (citing Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 156 (1991)). She also quoted the New Jersey Supreme Court, which found, in Dale v. Boy Scouts of Am., 160 N.J. 562, 734 A.2d 1196, 1243 (1999), rev'd on other grounds, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000), that "The myth that a homosexual male is more likely than a heterosexual male to molest children has been demolished."

Will There Be A Flood of Lawsuits? Answer: No

Will there be a flood of lawsuits? Looking to one of the largest states with the strongest protection from sexual orientation job discrimination, the experience of California shows that there is not likely to be a flood of lawsuits.

How many sexual orientation lawsuits did California have last year? 821 for a population of 37 million. Let's see, that's 1 case for every 46,000 people. It was also 4% of the 18,785 discrimination cases in California that year. More like a trickle than a flood, seems to me. There's no flood of sexual orientation discrimination litigation gonna bust out over America, overwhelming the EEOC and carrying hapless Congressmembers downstream.

Congressman Coble's letter contains the following surprising phrase: "We are also concerned that forcing employees to pursue discrimination claims in feeral [sic] court could actually prevent many possible victims from asserting their rights."

This would seem to imply that conservative Congressman Coble is quite concernced about gay employees, and the possibility that a federal civil rights bill is going to prevent them from raising civil rights claims in state court? But there have been both federal and state civil rights laws on the books since the 1960s, and no one's been precluded from raising civil rights cases in state courts. There's no provision in ENDA that would seem to force employees to use federal courts if there is a parallel state law.

The important thing to remember is that states have had similar laws for decades with neither of these concerns coming to the fore.

These arguments are set out in more formal language, with citations, in the Senate Report 107-341 - EMPLOYMENT NON-DISCRIMINATION ACT OF 2001.

There are a number of other objections to ENDA that will be covered in future posts.

Federal Court Decision: Is Gender Stereotyping of Gay Employees Illegal?

2009-09-04T21:12:00.000-04:00

The US Third Circuit Court of Appeals, covering New Jersey, Pennsylvania and Delaware, recently released a decision in the case of Prowel v. Wise Business Forms. This case is notable because it finds enough evidence to move forward with a claim of employment discrimination based on "gender stereotyping" against a gay man under Title VII of the Civil Rights Act of 1964.

This is a hot topic among courts these days, with the nearby Second Circuit, which covers New York, Connecticut and Vermont, holding in previous cases that such a claim is not allowed when the complaining employee is a gay person, because discrimination based on sexual orientation is not prohibited by Title VII. They do also say that theoretically such claims by gay employees should be allowed, but then they throw up their hands and say something like "it's wayyy too hard to sort out all these different types of gay people, so fuhgeddaboutit." Of course, the Second Circuit's position is bogus, because gender is different from sexual orientation. This is why the ENDA bill is important, because it will get rid of these legal technicalities that arbitrarily and capriciously provide job protections to some, but not to others similarly situated.

As I recently discussed at length in a law review article published in the Temple Political and Civil Rights Law Review, the meaning of the word "sex" now includes the idea of gender, including such concepts as gender stereotyping, gender identity and gender expression. Thus, when Title VII prohibits discrimination "because of sex," it should now be understood to include all that gender and its related components.

In this Third Circuit decision, the Court made the correct decision, allowing a claim of gender stereotyping to move forward, unlike the ill-conceived rulings in the Second Circuit.

In this case, Prowel, a gay man employed by Wise Business Forms, sued for discrimination because of sex and religion under Title VII and the Pennsylvania Human Relations Act. The lower court issued "summary judgment" in favor of the employer, Wise, throwing the case out of court. The appeals court reversed this decision, reinstating the lawsuit, and allowing Prowel to get his case in front of a jury.

On a "summary judgment" motion like this, the only question is whether there is enough evidence to go forward to a trial. The truth of the plaintiff's claims are not judged. Rather, the only question is whether, if everything the plaintiff says is true, there is a possible legal claim that can win. If the plaintiff's complaint doesn't state a good legal case, it's thrown out of court and the lawsuit ends there, and the defendant can stop spending time, effort and money defending the case. If there is a possible legal claim, the case moves forward to a trial, usually in the next year or two, wherein a determination is made of whether the plaintiff's claims are true.

The Facts

Here's the claims made by the plaintiff employee, Prowel, in brief. After 13 years with the company, Prowel was laid off in 2004. The reason given was lack of work. Prowel sued for discrimination, noting that he is an "effeminate man" whose mannerisms caused him not to fit in with the other men at Wise. Some of Prowel’s co-workers made negative comments, both orally and in writing, calling him "Princess," "Rosebud," and faggot, and putting graffiti on the wall stating that he had AIDS.

Prowel also said the company discriminated against him because his conduct did not conform to the company’s religious beliefs. He found anonymous prayer notes on his work machine on a daily basis, and occasionally notes stating he was a sinner for the way he lived his life, and "Rosebud will burn in hell." Another co-worker who disapproved of Prowel brought religious pamphlets to work that stated "the end is coming" and "have you come clean with your maker?" Prowel's co-workers shunned him and his work environment became extremely stressful and debilitating. He also felt that he received more work than the others. He complained to management about these things, but to no avail.

Seven months after a meeting with the general manager to discuss Prowel’s concerns about his workload, he was terminated effective immediately for "lack of work."

The Court's Reasoning

Prowel sued, but the District Court threw the case out of court on summary judgment because it said that this was "merely" a claim for sexual orientation discrimination not covered under Title VII. The court said that Prowel was repackaging a sexual orientation claim as a gender stereotyping claim and a religious discrimination claim in an attempt to avoid the fact that sexual orientation discrimination is permitted by law.

The appeals court reversed this decision, allowing Prowel's claim to move forward. The appeals court immediately focused on a similar case that it decided in 2001, the often-cited decision in Bibby v Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001). In that case, the court dismissed a claim of sexual harassment by a gay employee who was assaulted by co-workers and subjected to crude remarks and sexual graffiti. The Court said the claim was written up in such a way that it appeared to be a case of sexual orientation discrimination, which is not covered by Title VII. However, the Court also said that "This does not mean, however, that a homosexual individual is barred from bringing a sex discrimination claim under Title VII."

What is the difference between a sexual harassment claim and a sexual orientation discrimination claim? There's really not much of difference, but enough so the lawyers can make a mountain out of that molehill. In the Bibby case, while the Third Circuit threw out that lawsuit, it admitted that a gay plaintiff could raise a gender stereotyping claim, if it is written up to show that they were being punished for noncompliance with "gender stereotypes." This is why lawyers are worth so much money, because millions ride on the difference between writing up your lawsuit with the magic words. "No, Your Honor, my client did not get beat up because he's gay. He was beat up because he's gender non-conforming."

Anyway, Bibby's case got dismissed because his lawyers didn't write it up as "gender stereotyping." The Prowel court puts a fig leaf on this, sying that Bibby didn't present enough evidence to show gender stereotyping. I did hear a rumor that this was some kind of oddball strategy decision by Bibby's lawyers, but my guess is that no one really understood the difference between the two claims way back in 2001.

Judges do not like overruling themselves; it looks bad and generates a lot of criticism. Sometimes it's more honest to do so, particularly when there is an arbitrary distinction like the one here which nobody can really understand. But I don't like admitting my mistakes either, so I'm prepared to cut them some slack. Here, the Third Circuit said that Prowel, unlike Bibby, showed evidence of harassment based on gender stereotypes, rather than sexual orientation, because:

He acknowledged that he has a high voice and walks in an effeminate manner. In contrast with the typical male at Wise, Prowel testified that he: did not curse and was very wellgroomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot “the way a woman would sit.” Prowel also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with “pizzazz.” Prowel’s effeminate traits did not go unnoticed by his co-workers, who commented: “Did you see
what Rosebud was wearing?”; “Did you see Rosebud sitting there with his legs crossed, filing his nails?”; and “Look at the way he walks.” Finally, a co-worker deposited a feathered, pink tiara at Prowel’s workstation.

The Court said this differed from the Bibby case because Prowel was harassed because he did not conform to Wise’s vision of how a man should look, speak, and act — rather than harassment based solely on his sexual orientation. While it acknowledged that much evidence also showed harassment motivated by sexual orientation, the Court said that a case can be made that both were occurring at the same time, though not every case will involve both.

I'm not sure I see such a clear-cut difference from the Bibby case, where the employee was subjected to slurs such as "everybody knows you're gay as a three dollar bill," "everybody knows you're a faggot," and you're a "sissy." One definition of "sissy" is an effeminate man. It sounds like what the Prowel Court is saying is that, if Bibby had been called a sissy more, and a faggot less, or if they would have used the word "queer" or "faggy" rather than "gay" or "faggot," then he would have had a claim. That's just silly.

The Religious Discrimination Claim

The Court dismissed Prowel's claim of religious discrimination because Prowel admitted that the only way in which he failed to conform to his co-workers’
religious beliefs was by virtue of his status as a gay man, considered by some co-workers to be contrary to being a good Christian. The Court concluded that such discrimination was not because of religion, but because of his sexual orientation. The Court rejected a comparison to similar case from California, where the employer was found liable for religious discrimination when he openly criticized the employee's homosexuality based on religious grounds. There, the Court said, the employer went further, and insisted that the employee convert to the employer’s faith and lead the company’s daily prayer service.

Again, it seems to me that the Court makes distinctions without a difference. What would this court do in the case of an employee who is not himself gay, but is, for example, a gay-affirming lay minister, and who is therefore discriminated against. I think the Court would have no choice but to admit that religious discrimination occurred, and not sexual orientation discrimination. Were that employee, however, to himself be gay, then it sounds as if the Court is saying that it would then not be a case of religious discrimination unless the employer itself demanded a religious conversion and taking part in religious activities. I'm not sure of the difference between such a demand and the daily religious exhortations of Prowel's co-workers.

I do see an important difference between the religious exhortations in the Prowel case, and the right of an employer to be religious, have religious views, and to tell employees about religion. Since the "separation of church and state" doctrine applies only the government, private employer are free to do all these things. However, that doesn't mean you can allow co-workers to freely tell other employees that they are bad and wrong and going to hell for not following a particular religion or religious practice, and then fire them in retaliation for complaining about it. I'm all in favor of religious freedom, but paraphrasing Justice Holmes, my right to swing my Bible ends where the other man's nose begins.

At the same time that I am critical of these doctrines, I want to make it clear that I am not critical of these judges. They are attempting to ameliorate the harsher aspects of the law, under which some courts have routinely denied any relief to gay employees for sexual harassment simply on the ground that they are gay. In fact, I've been told these three judges are all George W. appointees, making their decision all the more praiseworthy, as they could have mimicked the Second Circuit (discussed above) but refrained.

This area of the law, so troubled and troubling at the same time because of its arbitrary and capricious treatment of similarly situated plaintiffs, will hopefully soon be righted by the passage of the Employment Non-Discrimination Act, clarifying that job discrimation based on sexual orientation and gender identity is prohibited.

Legal Analysis of ENDA, Section 3 (a)(3) and 3(a)(4): Private Employers

2009-08-27T08:28:00.012-04:00

This is part two of a series of posts analyzing ENDA, the Employment Non-Discrimination Act, known as H.R.3017 in the U.S. House of Representatives, and S.1584 in the Senate.

In this post, I analyze Section 3(a)(3) and 3(a)(4), which contains the definitions of "employee" and "employer" as applied to private employers. While this section might seem quite boring and irrelevant to the untrained eye, in reality it is, in fact, a exciting display of the political forces swirling around the bill. In this section, we find out who and what the bill is going cover -- or, more importantly, not cover.

Is your employer covered by ENDA? Are you? These and more thrilling questions ahead.

I have set out the texts of Section 3(a)(3) and (4) at the bottom of this post, which sets out the portion of the definitions of "employee" and "employer" relevant to the private sector. The definition of employee in this context is not very important. Rather it is the term "employer" that provides the major limitation. The main prohibition on employment discrimination, found in Section 4 of the bill, says that it shall be "an unlawful employment practice for an employer" to discriminate based on sexual orientation or gender identity. What is an "employer"?

If you're not within the definition of "employer," then it is not against federal law to discriminate in this way. Of course, many states and localities have laws that prohibit such discrimination, so an employer may still be prohibited by law from discriminating.

When Title VII of the Civil Rights Act was passed in 1964, it applied to all employers with 25 or more employees. It was subsequently amended over the years to apply to employers with 15 or more employees. ENDA, as you can see from the text at the bottom of this post, uses the 15-employee threshhold.

The counting includes all employees, whether part-time or full-time employees. The counting does not include unpaid volunteers. ENDA's definition of "employee" explicitly excludes unpaid volunteers.

But what if your employment rolls fluctuate, as most do, so that sometimes you're under 15 and sometimes over? That is why the definition says the number should be counted "for each working day in each of 20 or more calendar weeks in the current or preceding calendar year."

How many such employers are there? As of 2006, for private non-government employers, there were about 92 million employees in firms over the threshhold, and about 17 million employees in firms below it. That means about 84% of all private employees would be covered.

This portion of the definition does not cover government workers, of which there are about 17 million. I will discuss those next time.

Employers "Affecting Commerce"

The statute explicitly only covers employers "affecting commerce." This refers to the constitutional authority under which Congress has the right to pass the statute, i.e., the power to regulate interstate commerce under Article I, section 8 of the U.S. Constitution.

Over time, the Supreme Court has found more and more types of activities to be within the ambit of interstate commerce, so that even an employer whose goods or services are only used or provided within a single state would likely be found to "affect" interstate commerce. As noted right in ENDA's definition of "employer," the term "affecting commerce" is further defined in the statute 42 U.S.C. 2000e(h). Here is what section (h) says:

The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.], and further includes any governmental industry, business, or activity.

Interestingly to legal and historical scholars, that last bit about including governmental industry was not in the original Title VII, but was added later. That is because state and government workers were not originally covered by Title VII, but were added in later. I'm not sure that the government's activities constitute "interstate commerce" in the same way that private industrities do. Is government commerce? I don't know, and I don't have to know -- the law defines it as commerce, and commerce it is. Perhaps someone will someday challenge this notion in court, and then we will see. I don't think it's of key importance in ENDA because the main authority on which ENDA rests as to government workers is the 14th Amendment, and not the Commerce Clause. More on this in the upcoming post on ENDA's coverage of government workers.

"Private Membership Clubs"

This definition also excludes private membership clubs, other than labor unions, that are chartered under section 501(c) of the Internal Revenue Code. What constitutes a private membership club? An example may be found in the 1997 case of
Richard v. Friar's Club, 124 F.3d 212 (9th Cir. 1997).

In that case, the court noted that a club must show three elements: that it (1) is a club in the ordinary sense of the word, (2) is private, and (3) requires meaningful conditions of limited membership. EEOC Guidelines § 605 at 2316.

The court found that the Friars Club effectively limited its use of its facilities and services to club members and their guests, through the use of consistently-enforced club rules and security devices. Although the record contained some evidence that the club may have held two or three events open to the public, the club's general practice appeared to adhere to its members-only policy. Under the club's by-laws, members controlled the club and its assets through the board of directors. The declaration of the club's general manager and controller indicated that the club had not engaged in any significant amount of paid or general advertising.

In a number of cases, organizations such as hospitals and credit unions have tried to take advantage of this exception, usually (but not always) unsuccessfully.

-----------------------------------------------------

TEXT OF SECTION 3 OF H.R.3017 AND S.1584

SEC. 3. DEFINITIONS.

(a) In General- In this Act:

* * *

(3)EMPLOYEE --(A)IN GENERAL- the term `employee' means--(i) an employee as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f))

(4) EMPLOYER- The term `employer' means--(A) a person engaged in an industry affecting commerce (as defined in section (701)(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h)) who has 15 or more employees (as defined in subparagraphs (A)(i) and (B) of paragraph (3)) 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 (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986;

* * *