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Pragmatism, principle, and law in ENDA:

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

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

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

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

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

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

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

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

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

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

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

Related Posts (on one page):

  1. Barney Frank's ENDA:
  2. Bush to veto ENDA?
  3. Lambda's ENDA:
  4. Pragmatism, principle, and law in ENDA:
Mark Creatura:
What is mystifying about this discussion is that there is no acknowledgment that such legislation imposes costs.

Seventeen times in the 33 sentences of the entry the author uses the word "protect" or its variants. Nowhere (maybe I missed it) is there a hint that creating yet another protected class will impose deadweight costs on society. But the common experience of employers is that there are such costs, and that they are significant. Every time a manager seeks to take action against an underperforming employee, out comes the checklist of privileged classes, and an anguished cry from the human resources specialist that firing _this_ deadwood would run afoul of one or another of the so-called civil rights laws.

Doubtless the ENDA contains the usual expansive clause, to the effect that it is unlawful to discriminate not only against members of the privileged class, but also against those perceived to be members? So ENDA would make viable (by which I mean past summary judgment) any claim by even a white native protestant fully-abled male under forty, if he had ever dismissively been called a fag?

Is the opportunity such further judicial review of every private decision really a good thing?
10.6.2007 4:50pm
Randy R. (mail):
Yes it is. As long as employers think that they should be able to fire anyone simply because he or she is gay, then such legislation is needed.

But I agree that there is a better solution to this. Judge each individual according to his or her merits on the job, and such legislation, whether based on sexual orientation, race, creed, pregnancy status, or age will no longer be necessary.

However, judging from some of the comments made by people over time here on the VC, that time is not coming any time soon.

As for whether ENDA should include transgendered people, I'm all in favor of it. However, I know that there are political realities. I would rather have an imcomplete ENDA in force, then a perfect ENDA that never passes congress.
10.6.2007 5:01pm
M. Lederman (mail):
Hey, Dale, thanks for the informative post. Here's the odd thing about this debate: The unadulterated ENDA does not refer to discrimination against the "transgendered." Indeed, other than very discrete and limited provisions in sections 8(a)(3) and (4) concerning changing-room and dress/grooming exemptions for employees who have undergone or who are undergoing "gender transition," the bill doesn't refer to "trans"-anything.

Instead, it prohibits discrimination on the basis of "gender identity," which is defined to mean "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." In other words, it appears to expressly codify the very prohibition on sex stereotyping that Price Waterhouse has already held was impliedly contained within Title VII's prohibition on sex discrimination.

The replacement Frank bill
deletes altogether the references to sexual identity (and sexual transition, for that matter). If this had been the original bill as introduced, I'd agree with you that there would be little risk of the courts construing it to eliminate the prohibition on sex-stereotype discrimination recognized in Price Waterhouse. I fear, however, that because the sponsors will have conspicuously deleted that provision from the bill in reaction to opposition, it might well be read to permit employers to discriminate on the basis of sex stereotyping, thus effectively overruling that aspect of Price Waterhouse. How else would one explain the deletion?

At the very least, I would hope that the statute itself, or, less helpfully, the congressional reports, would clarify that nothing in the bill or its history should be construed to change in any respect the prohibition on sex stereotyping recognized in Price Waterhouse.

DC: Marty, many thanks for the comment. You're quite correct that the wording is "gender identity" and I could have made that clearer earlier in the post. I use "transgender" in the post in some places only to make clear that this is the group specially aggrieved from the omission of those words. I don't think masculine lesbians or effeminate gay men are harmed at all from the omission of these words.

As to whether omitting "gender identity" from ENDA will change courts' understanding of sex stereotyping claims arising from Price Waterhouse in Title VII, I think that is very unlikely. Many interpretations about the omission are possible, as I argue in the post, including the correct and obvious one: that there simply aren't enough votes in Congress to include "gender identity" so it was taken out. The least plausible one, to me, will be that Congress silently changed two decades' worth of precedent under separate federal antidiscrimination law.
10.6.2007 5:08pm
PersonFromPorlock:
I have a real problem with protected classes, not because people don't need protection from arbitrary employers but because everybody — not just racial minorities or GLBT — needs it.

Why not a law straightforwardly recognizing that a worker's reputation as a worker is a valuable property? Such a law would let any worker sue an employer for actions that damaged his reputation without a performance-related cause. I believe such a law would have broad support.
10.6.2007 5:14pm
gattsuru (mail) (www):
Then there are the freedom of association issues. I know places with plain bad workers who are unwilling to deal with an CRA lawsuit.

And then there are folk who wonder why we're providing extra job security for this sorta thing, when people can be fired for daring to execute a constitutional right off the job, or because of neurological differences that don't disagree with other folk's exercise of religion.

It's easy to hide sexual orientation if you're worried about the folk on the job getting notice of it. I've done so at multiple places, and I've seen folk spend years in a pretty obvious relationship outside of work without setting off anyone's gaydar inside. Try getting someone with Asperger's past some of the psych tests employers run -- even for jobs which those on the Spectrum perform better on -- or a CCW owner in the places where newspapers post those records online, and then tell me about pervasive discrimination again.
10.6.2007 5:29pm
John (mail):
Will Congress be subject to this law, or only the rest of the country?
10.6.2007 5:32pm
Elliot Reed:
Of course, all this ought to be unnecessary, since the cases finding this stuff not covered by the existing Civil Rights Act were all wrongly decided. You might as well hold that discrimination against religious converts, or discrimination against people who date members of their own their religion is, not religious discrimination.
10.6.2007 6:14pm
Brooks Lyman (mail):
There's another problem which seems to get swept under the table a lot:

Most people - including most employers - have no problem with people who are LGBT, etc, but have a real problem with people who openly proclaim their sexuality, particularly in social and workplace situations where such "letting it all hang out" can be very offensive.

Knowing that John is gay or Martha is lesbian or Harry is rutting with any woman foolish enough to go along with him is a lot different than having these people talk - boast - openly about it in public (or the close society of a workplace) not to mention openly and actively pursuing their chosen lifestyle, particularly in a workplace environment, where it can be very offensive - whether hetero or homo - to the "captive" audience.

Unfortunately, firing such a disruptive person is generally considered discriminatory, particularly if they are in a protected category. This puts an intolerable burden on employers and operators of public venues such as restaurants, libraries, etc. One is reminded of the case of the unwashed, presumably mentally ill, homeless person who made a public library a very unpleasant place to visit, but who was (if I remember correctly) protected against eviction by the anti-discrimination laws.

It seems to me, that there is a middle ground somewhere, and that we are rapidly moving away from it. In our rush to protect minorities from society, we are forgetting that sometimes there are legitimate reasons to protect society from minorities.
10.6.2007 6:18pm
Elliot123 (mail):
Is there a problem for which this new ENDA provision is a solution? What's the real problem? What's the extent of that problem? Is it increasing or decreasing?
10.6.2007 6:24pm
Elliot Reed:
Most people - including most employers - have no problem with people who are LGBT, etc, but have a real problem with people who openly proclaim their sexuality, particularly in social and workplace situations where such "letting it all hang out" can be very offensive.
This is true in part, but there's a serious double standard for what counts as "letting it all hang out". Gays and lesbians are regularly accused of "flaunting" their sexuality for doing the exact same things heterosexuals do without anyone finding it remotely remarkable (e.g., mentioning their spouse or boyfriend/girlfriend, putting a picture of their s.o. on their desk).
10.6.2007 6:30pm
Smokey:
Will Congress be subject to this law, or only the rest of the country?
Let's not get carried away to the point of ridiculousness here.
10.6.2007 7:16pm
ScottS (mail):
Knowing that John is gay or Martha is lesbian or Harry is rutting with any woman foolish enough to go along with him is a lot different than having these people talk - boast - openly about it in public (or the close society of a workplace) not to mention openly and actively pursuing their chosen lifestyle, particularly in a workplace environment, where it can be very offensive - whether hetero or homo - to the "captive" audience.

There are so many things wrong with this post.

I have never been in a workplace where anyone boasts about their sexual proclivities, gay or straight. I have no idea what is meant by "openly and actively pursing their chosen lifestyle" unless you mean you think it would be a good idea for firms to start firing people for asking each other out on dates. Face it, work is a dominant aspect of existence for early career professionals, and a large number of people find their spouses on the job... gay and straight. You might consider getting over it.

The premise of your post seems to be that when gay people bring their date to the office Christmas party, that grosses you out, and that's a good enough reason to fire someone.

"we are forgetting that sometimes there are legitimate reasons to protect society from minorities."

It saddens me to have my dignity and happiness be seen as a threat.

The only legitimate reason to protect society from minorities would be to protect children from the pernicious influence of bigots and fearmongering haters with their own peculiar psychosexual issues that require them to impose social silence around things they lack the empathy to understand.

Somehow I doubt you understand the previous paragraph, because I doubt it has not occurred to you that people who think like you do will be a minority within the next decade if you aren't already.

The next generation laughs in your general direction.
10.6.2007 7:26pm
Randy R. (mail):
Brooks: "Knowing that John is gay or Martha is lesbian or Harry is rutting with any woman foolish enough to go along with him is a lot different than having these people talk - boast - openly about it in public (or the close society of a workplace)"

Well, if straight people would just stop flaunting their sexuality, then perhaps I'll consider it too. In the meantime, I'll still have pictures of my boyfriend on my desk at work, I'll bring him to company picnics, and when people ask what I did over the weekend, I'll mention that we went to the gym together. Or did gardening. whatever.

And at the annual Holiday party, I'll even kiss him in public when everyone else kisses their significant others. I shouldn't get fired for doing so.
10.6.2007 7:32pm
Randy R. (mail):
Brooks: " we are forgetting that sometimes there are legitimate reasons to protect society from minorities."

We;ll give you a chance to elaborate. What are the legitmate reasons to 'protect' society? And from what? T
10.6.2007 7:33pm
Houston Lawyer:
Will the bill protect those who openly cheat on their spouses or those who are "swingers", or only certain types of sexual nonconforminity be protected?

As is pointed out above, there are actual costs to enforcing these policies. I have known gay men to object to the hiring of other gay men because of the "gay" behavior of the man in question. People who behave inappropriately, in the eyes of their employer, shouldn't have protection for such behavior.
10.6.2007 7:38pm
Elliot123 (mail):
ScottS: "I have never been in a workplace where anyone boasts about their sexual proclivities, gay or straight. .... Face it, work is a dominant aspect of existence for early career professionals, and a large number of people find their spouses on the job... gay and straight."

Well, I can assure you that such boasting does occur, mostly by a subset of straights since they are the majority, but a subset of gays have shown their decorum is equally lacking.

We should remember that "early career professionals" comprise only a small portion of the total workforce. And my experience does not confirm the notion that work is the dominant aspect of existence for these folks. For some it is; for some it isn't. The interesting thing is that job performance tends to have little correlation to the person's dominant aspect of existence.

In any case, a careful employer can get rid of anyone he wants for any reason he wants.
10.6.2007 8:17pm
David M. Nieporent (www):
Why not a law straightforwardly recognizing that a worker's reputation as a worker is a valuable property? Such a law would let any worker sue an employer for actions that damaged his reputation without a performance-related cause. I believe such a law would have broad support.
That would be great; we could have European style unemployment in the U.S. (It would be a vast boon to employment lawyers, of course.)

I have a better idea: how about a law pointing out that a person has no right to a job, and it's up to an employer to decide whether to employ that person, using any criterion that employer wants, just as an employee can quit a job for any reason that employee wants, even based on prejudice or arbitrary non "performance-related" reasons?
10.6.2007 8:51pm
Ken Arromdee:
I have never been in a workplace where anyone boasts about their sexual proclivities, gay or straight.

If nobody (gay or straight) ever did that, we wouldn't need sexual harassment laws.

Of course people do it. Someone who objects to gay people boasting about sex might not mean they object to having a picture of their boyfriend on their desk. They could very well really mean they object to gay people boasting about sex.
10.6.2007 8:55pm
Cornellian (mail):
I have a better idea: how about a law pointing out that a person has no right to a job, and it's up to an employer to decide whether to employ that person, using any criterion that employer wants, just as an employee can quit a job for any reason that employee wants, even based on prejudice or arbitrary non "performance-related" reasons?

That wouldn't be a law, it would be the absence of a law, i.e. repeal of Title VII and parallel state statutes. Feel free to campaign on that platform if you wish, but don't hold your breath waiting to get elected.
10.6.2007 9:19pm
Brooks Lyman (mail):
Elliot Reed, et al:

I would consider photos, S.O. at the company picnic, etc. to be generally acceptable behavior.

The following might be considered to be somewhat less than acceptable: sexual activity in public (by which I mean, in open sight of passersby, etc.); boasting about sexual prowess or exploits or one's sexual orientation (all of which refer to straight or GLBT); some of the over-the-top public behavior at gay pride parades, etc.; overly immodest clothing in inappropriate venues (hard call, but I think most of us know when and where more or less exposed skin or suggestive clothing is generally acceptable - not necessarily a matter for the law, but certainly people can be offended, and it's not necessary to offend people in order to become free from discrimination. Indeed, the result of offending people may be increased discrimination....); inapropriate behavior towards fellow workers, etc. (this one is covered to some extent by sexual harrassment law).

The minorities from which we need to protect society are not necessarily GLBT people or overly macho straights (although age-inappropriate presentation/teaching of sexual matters in schools might be an area to explore). Sorry if that was misunderstood. The reference was more global, in that we have instituted a regime of minority protection/privilege which sometimes loses sight of the fact that there is a majority which also has rights.

In any event, the minorities that I was thinking of that we need to protect society against were such as radical Muslim groups supporting terrorists, NAMBLA, criminal youth gangs, etc. And don't think that these people are not protected to a very great extent - perhaps too great - in this country. Every time some group is found to be sending "charitable" contributions off to Hamas or Hezbollah (not to mention al Qaeda), CAIR gets up on its high horse crying "discrimination" and all the usual suspects among the political and chattering classes roll over and play dead. Considering recent history, they may get a chance to do more than "play" dead if they don't recover - or discover - a proper sense of proportion in these matters.
10.6.2007 9:22pm
SenatorX (mail):
"I have a better idea: how about a law pointing out that a person has no right to a job, and it's up to an employer to decide whether to employ that person, using any criterion that employer wants, just as an employee can quit a job for any reason that employee wants, even based on prejudice or arbitrary non "performance-related" reasons?" DMN

This is what I think too. I read this article and the first thought that came to my my mind was "Yet another reason not to start a business".
10.6.2007 9:26pm
Alcyoneus (mail):
Um...why do employers lack the right of free association?
10.6.2007 10:30pm
David Matthews (mail):
"Yes it is. As long as employers think that they should be able to fire anyone simply because he or she is gay, then such legislation is needed."

Amen, Randy.

"As for whether ENDA should include transgendered people, I'm all in favor of it."

And another Amen.

And now a cautionary note, that I think bears some relation to this topic.

When my (biracial) daughter was starting kindergarten, she was not allowed to attend the magnet school of our choice, because her race had been listed as "African-American," and the African-American slots had all been filled. But a helpful staffer noticed my obvious non-African-American-ness, and pointed me to a "change of race" card that would, voila, convert her to a white girl. "So," I responded, "she can go to this school because she can 'pass?' "

What does this have to do with the topic at hand? Well, the oh-so-helpful staffer informed me and my now-in-tears 5 year old that the legislature was slated to "fix the problem" by adding a new "biracial" category. Sort of thinking that drives a person to drink.

Discrimination is not fixed, or redressed, or even addressed, by adding yet more protected classes. We got to take the problems head-on, and realize that, like the poor, it may be with us always. And that sometimes the (government imposed) cure is no better than the disease.
10.6.2007 11:08pm
David M. Nieporent (www):
That wouldn't be a law, it would be the absence of a law, i.e. repeal of Title VII and parallel state statutes.
Well, if we believe liberal anti-federalism jurisprudence, we could just pass a federal law preempting those "parallel state statutes." Voila; now it's a law, not the absence of a law.
Feel free to campaign on that platform if you wish, but don't hold your breath waiting to get elected.
The 13th amendment wouldn't have passed if the southern states hadn't seceded, either. I'm not sure what you're trying to prove, in other words.
10.6.2007 11:49pm
JosephSlater (mail):
I'm not sure what I think about the transgender issue. But people are discussing laws that prohibit employment discrimination on the basis of sexual orientation as if it's some new idea that's never been tried, and thus feel free to speculate about all sorts of Really Awful consequences such laws may have.

In fact, combining the states and cities that already have such laws, it's been estimated that at least 1/3 of the U.S. workforce is already covered (since the states, although a minority, include some of the biggest states, and a number of decent-sized cities have such laws even if the state the city is in does not).

People haven't stopped opening businesses in such states and cities, and I'm not aware of any evidence that unemployment rates in those areas have increased at all, much less as a result of these laws. If folks are aware of any hard data indicating that these laws cause real problems, they should cite it. But let's not pretend that we can only speculate about the impact of such laws.
10.7.2007 12:25am
Randy R. (mail):
JosephSlater: "But let's not pretend that we can only speculate about the impact of such laws."

Amen. And for those who keep crowing about the costs of including GLBT folk, let's see if they can produce ANY evidence.

Brooks: I think most everyone will agree that the type of behavior you point out are acceptable conditions for employment, and any employer would be able to implement them with the expectation that all employees would have to follow them. As long as the rules apply equally to gays and straights, and are enforced equally, I don't think many of us would have a problem.

However, you say that 'boasting' of one's sexual orientation is inappropriate. So if I simply say that I'm gay, isn't that boasting? If I say that I went to a gay bar over the weekend, or to Provincetown for vacation, and I saw some drag shows, would that pass muster?

Several years ago, Cracker Barrel decided that, as company policy, they would no longer hire or retain any person who is gay or lesbian. They didn't explain why. Quite a few were fired as a result, even though their employment records were exemplary. It took several years of lobbying, embarrassing, and shareholder actions to finally get them to reverse their policy. Now they have a very gay-inclusive one.
10.7.2007 12:36am
David Matthews (mail):
"So if I simply say that I'm gay, isn't that boasting?"

I don't know; I keep announcing my straight-ness, and it just seems like snivelling. It doesn't get me laid. And by the way I read the literature, it really should.
10.7.2007 12:45am
ReaderY:
The civil rights acts indeed address sexual orientation. Sexual harassment is perfectly legal if done by a bisexual supervisor. The same act is made illegal if done by either a heterosexual or a homosexual supervisor. It is solely the supervisor's sexual orientation, not the supervisor's conduct, that the law regulates.
10.7.2007 1:27am
Libertarian1 (mail):
My private business, my rules. Everybody is an employee at will. No protected classes, no quotas, no law suits. If you feel you have been discriminated against or harassed- quit. Unemployment is 4%+, so just get another job.

What will happen? Employers who fire good employees will suffer and either change or go out of business. Other employers will pick up these hard working discriminatees and will flourish. It is called capitalism.

"Freedom of association is a Constitutional (legal) concept based on the premise that it is the right of free adults to mutually choose their associates for whatever purpose they see fit. This concept has been included in several national constitutions, including the United States Constitution, the European Convention on Human Rights, and Canada's Charter of Rights and Freedoms."
10.7.2007 1:47am
ScottS (mail):
Brooks,
Let's set this strawman on fire. You start out stating that "Most people - including most employers - have no problem with people who are LGBT, etc." A convenient but disingenuous stipulation. Of course there are employers with strong prejudices against gays. This is self-evident to everyone with a pulse, and why the ENDA has 70%+ public support while civil unions/marriage considerably less.

Then you go on to explain that it is really the sex in the closet, nudity, and sexual harassment that you are concerned about.

Supposedly the ENDA will make it impossible to fire a total creep; what baloney. Sexual harassment law will not vanish in thin air. If unreasonable claims could be made outside the scope of the obvious intent of the law, then feel free to argue for different language in the law. This you do not do. Instead, we are expected to believe that you are actually concerned for our civilization in general:

"In any event, the minorities that I was thinking of that we need to protect society against were such as radical Muslim groups supporting terrorists, NAMBLA, criminal youth gangs, etc."

This is why it should remain legal for employers to fire people for being gay. Otherwise, them terrorists are goins to get 'cha!!!

To summarize: we had better not have the ENDA, or NAMBLA will be able to run wild in the workplace. I'm soooo glad that you would allow someone to have a picture of a significant other at work. That definitely proves that you are not a homophobe.
10.7.2007 1:49am
Elliot123 (mail):
ScottS: "Of course there are employers with strong prejudices against gays. This is self-evident to everyone with a pulse,... "

Can you tell us who they are?
10.7.2007 2:02am
ScottS (mail):
"If you feel you have been discriminated against or harassed- quit. Unemployment is 4%+, so just get another job.

What will happen? Employers who fire good employees will suffer and either change or go out of business. Other employers will pick up these hard working discriminatees and will flourish."

More evidence that libertarianism is the derivative of liberalism as common sense goes to zero.

If unemployment were 10%, would you support the ENDA? Of course not. That it is <5% makes it easy to dismissively tell people to quit, as if that carried no risks or costs to their family, and to argue that there will be economic costs to employers getting rid of good employees they just happen to dislike for personal reasons.

Back in the real world, we know that many prejudiced employers will not suffer an economic hit, while many innocent workers will suffer from that prejudice. Even if you could show that market incentives working towards a de facto non-discriminatory environment in the aggregate, people aren't aggregates.

For further evidence, imagine making the above argument about race in the 1950s, or about any number of low/medium skilled jobs when the labor market isn't so tight. Markets aren't that efficient, and we don't live forever.
10.7.2007 2:18am
Brooks Lyman (mail):
ReaderY: I am certainly no expert on the civil rights laws, but surely sexual harrassment would be based on the acts committed on/to the victim, without regard to the sex or sexual orientation of the perpetrator?

ScottS: "Most" means the majority - in this case, I would suggest the vast majority. There's always some neanderthals around.

I have no problem with "sex in the closet;" I object to sex in the middle of the office or the middle of the street. I would like to think that most people would agree with me , that sex - sexual relations - is and should be private.

As for nudity or various degrees thereof, as I said, it's a matter of venue - one would presumably not dress the same way in the office or courtroom as in a nightclub, on the beach or in the bedroom. It may not be illegal, but one wouldn't do it, and any law that would allow one to contest a firing for such behavior on the grounds that one was GLBT, is defective, in my view. Sexual orientation or gender should not be an excuse for flouting accepted standards of decency - which isn't to say that there might not be other defenses.

I have no use for employers who would fire someone for simply being gay, but I would probably sympathize if the gay person were acting in a way that other people in the workplace found to be offensive to the point of being oppressive or harrassing or that had a negative effect on the conduct of the business. In short, other than as a matter of fact unrelated to the work at hand, the fact that someone is straight or gay ought not intrude into the workplace.

So, John may be gay, but he doesn't make a big deal about it, doesn't cruise around the office (if that's the correct terminology) and is a good worker and fits in well. Why should anyone want to fire him? Oh, sure, there are people who would, just as there are people who won't hire blacks or promote women. My point is only, that let's be careful before we create more opportunities for full employment in the legal profession.

And where did I say that "it should remain legal for employers to fire people for being gay?" Or that there is any connection between that proposition of yours and being able to control minorities that are harmful to our society?
Sorry, those are your words, your ideas - not at all what I was talking about.
10.7.2007 2:52am
jvarisco (www):
I've never really understood how cutting off one's genitalia is the same as being attracted to the same sex.
10.7.2007 2:56am
Mike Gallo (mail):
I am also very displeased with the formation of protected classes; they are a disingenious solution to what is essentially a non-problem. Let's say, for instance, I wanted to be eligible for some sort of affirmative action. Well, my family is technically from Brasil, even though we're of Italian heritage. So, because under many systems I self-identify my ethnicity, I choose to become Latino. The University of Wisconsin in Madison has such a program in place for minority quotas which may admit me as Latino, but not as an Italian-American. Or, perhaps, I wish to contest an employers choice to hire another applicant instead of me. Well, I self-identify sexual orientation (though being transgendered certainly doesn't fit this model; they can check that!). So, now I'm a happily married bisexual male who claims he was discriminated against for his sexual orientation in litigation.

I'm not trying to say there isn't discrimination out there. That would be naive. I am saying that there is no law that can be put in place to protect against discrimination when members of the established protected classes self-identify as such.

I'd love to see the free market sort this out as was mentioned earlier (employers won't care if a great applicant or employee is gay, because it hurts the company and the company essentially loses money by passing over great employees for something as trivial as this).

As far as the "cost" of special protections for certain classes, I think that has been made clear, but my take on it is this: If you feel pressured to, say, hire or fire an employee in the face of litigation instead of on the merits of their work, your company experiences a loss in efficiency that costs them time and money. I've seen this "walking on eggshells" effect many times in several industries for things such as learning disabilities (or other psychological tags including ADD and ADHD), military service, age, race, and gender. In one instance, I remember over eight months of getting together an air-tight case against a lazy and careless employee (this is a chemical plant, mind you; imagine the "cost" of a major environmental incident or deadly accident) so as to preempt possible litigation for wrongful termination due to claimed discriminitory practices.
In essence, I believe this type of discrimination may be a problem, but one for which no current legislative solution exsists. That's not to be a cop-out, but rather an invitation for others' ideas, as I'm obviously lacking in the "real solution" department on this one.
10.7.2007 2:59am
Mike Gallo (mail):
Oops looks like "transgendered" was a bit of a misnomer in my post. I guess I meant transexual persons could be "checked" for traits of a protected class instead of self-identifying, though I suppose obvious signs of gender-nonconformance in transgenders would be subject to a "resonable person" type test. Sexual preference would still be 100% self-identified, though.
10.7.2007 3:11am
SenatorX (mail):
We don't have to speculate, there are examples all over the place(like France). The more laws you put in place that make it difficult to fire workers the more careful employers are on hiring in the first place. You don't have to be a rocket surgeon to know this will happen.
10.7.2007 3:44am
Mike S.:
Perhaps I am hopelessnly naive, but having been interviewed a couple dozen times for jobs, and having interviewed hundreds of other people for jobs, the subject of sexual orientation has never come up from either side of the table. Why would it? It has nothing to do with work (at least outside of some fields of sexually oriented entertainment, which is not my line) I have enough trouble hirng good people without rejecting some because of whom they are or are not sleeping with. The closest to the subject I ever recall is seeing participation in campus GLBT groups listed among extracurricular activities on a resume, but I assume these groups accept sympathetic straight members. Nor has flaboyant sexual display (whether straight or gay) on the job ever been a problem (and no, a picture of your significant other on the desk doesn't qualify here. Although a poster with full frontal nudity would qualify regardless of gender or orientation, I haven't seen anyone try to put one of those up at work since the early 1980's, and then it was straight guys putting magazine glossies of models up.) Anyway, unprofessional dress can be dealt with without regard to sexual orientation, as could the employee who is constantly propositioning fellow workers (although I have never encountered the latter.) My workplace includes many couples and all of them, both straight and gay, manage to refrain from sex in public at work.

Everyone I ever asked about this reports similar experience. While I am sure there are some bad employers out there, I am having trouble imagining that this is a pervasive problem akin to racism in the Jim Crow era.
10.7.2007 5:46am
Josie (mail):
I'm a lesbian woman who has been fired simply because my employer found out I was lesbian. It happens.

In my case, I worked primarily at home, coming into the office only for meetings. I'd been working there for more than 18 months, with extremely positive performance reviews. After my boss found out, he arranged for me to not come into the office for a few weeks (because his secretary was "uncomfortable" around me now that she knew about me), and then he called me into the office and gave me notice (despite the fact that I was working on an important project doing something that no one else in his employ was qualified to do).
10.7.2007 8:23am
Josie:
"My private business, my rules. Everybody is an employee at will. No protected classes, no quotas, no law suits. If you feel you have been discriminated against or harassed- quit. Unemployment is 4%+, so just get another job."

At least one study determined that the unemployment rate for transsexual people is more like 60%. I personally know of trans people that have been out of work for years. I also know of qualified professionals with degrees that have been forced to take minumum wage jobs because no one will hire them. The reason a disproportionate percentage of trans women take to the sex trade is a simple matter of survival, because the world discriminates against them so pervasively.

"What will happen? Employers who fire good employees will suffer and either change or go out of business."

Gay and lesbian workers are probably less than 5% of the work force. Trans workers are probably much less than 1%. Shockingly, employers can survive just fine while discriminating against such small minorities.

"I'd love to see the free market sort this out as was mentioned earlier"

I'd love to see that too. Can anyone provide me with examples for how well that has worked out in the past? I can't personally think of a lot of examples of the free market fixing discrimination against minorities all by itself.

It is true that time sometimes fixes things - Irish-Americans and Italian-Americans need no longer fear discrimination, for instance. But that's not the free market at work - those are examples of a minority being assimilated so throuroughly into the majority that it becomes part of the majority.

I don't see that happening to the queer community anytime soon, although the younger generations are much less bigoted than their elders.
10.7.2007 8:41am
Josie:
BTW Dale, your analysis doesn't offer me much comfort. The best you can offer is that if ENDA passes, it might be more difficult to fire a butch dyke for being butch - but no guarantees that she would be protected. I don't think there is much doubt that the inclusive version of ENDA is stronger (they also made a few other changes, like making the religious exemption much wider).

As to why the "two" groups should not be split...

I'm not surprised that some of the people here can't see it, but gender identity and sexual orientation are intertwined. Many homosexual people are gender variant in other ways (at a far higher rate than heterosexual people), and many transgendered people are lesbian or gay (at a far higher rate than cisgendered people).

When a dyke or a gay man gets harrassed, it is often because they are gender variant. When a trans woman gets assaulted, her assailants are often calling her gay while they kick her. In both cases, the real offense of the LGBT person is not conforming to heteronormative standards. This is why the two factions are interlinked, and this is why many of us oppose leaving part of our group behind.

Civil rights legislation is frequently incremental as to what protections are provided, but NOT as to who is covered within a broad category. The Civil Rights Act of 1964 did not cover only African-Americans - it covered all racial minorities. This law should cover all queer people, regardless of what specific aspect makes them non-heteronormative.
10.7.2007 8:59am
Toby:
I work for a large bureaucratic organization. I am really looking forward to quizzing all employees, probably during the performance evaluation cycle, to see of the orientation changed, or if they have made some personal discovery, so that I can make sure the record keeping is up to date.

I can imagine some supervisors will feel some of them will need detailed questioning.
10.7.2007 10:02am
jrose:
Josie,

I'm all for the inclusive version of ENDA, but I agree with Dale concerning your butch-dyke hypothetical. Given the dicta in Price (gender stereotyping claim should not be used to bootstrap protection for sexual orientation), she could easily lose with no ENDA. With a weaker ENDA, she can first make a sexual orientation claim. If that fails because a court rules there is no sexuality discrimination, the bootstrapping obstacle is removed when she proceeds to a gender stereotyping claim.
10.7.2007 10:47am
Mike Gallo (mail):
Okay, take, for instance, Asians. Here I include everyone from Arabs to Persians to Indians to the Chinese, and everyone in between (who we would consider to be non-Western culturally, so Russians would not fit this example). In my field of work (currently nucleic acid production) these individuals are clearly seeing high employment rates, despite a history of racism, including the currently high possibility of religious/ethnic discrimination against Arab Muslims.

This is because they are generally well-educated and hard-working; in fact, they're average education level is certainly post-graduate university level. The industry cares far more about skill sets than they do culture or skin color, therefore, the free market worked to make my industry, in particular, less discriminatory than it has been historically.

I would argue that they do not "assilmilate" into our culture much further than, perhaps, giving American names to their children. Certainly not as well as say, a Catholic light-skinned Scotsman or German.

Now, the more I think about it, the more I wonder if my industry has a larger applicant pool from Asians, and therefore would suffer disproportionately versus discriminating against, say, gay men. I like your point about the small percentage of the workforce not necessarily causing a large enough effect to be noticed. However, it surprises me that in the age of digital media, companies aren't more careful about their hiring and firing reputations. I know I certainly have a choice of who I work for, and there are some companies I wouldn't consider because of thier lay-off/compensation/safety reputations.

Thanks for the feedback, Josie; good thread so far. I wish I understood more about the legal aspect of this type thing.
10.7.2007 11:12am
Randy R. (mail):
Libertarian: "My private business, my rules. "

Sorry, you lost that one in the 60s. You can't just not hire blacks just because it's your business. You also can't fire a woman if she becomes pregnant, or reaches the age of 50.

There are various forms of ENDA in about 13 states. Again and again, we have asked people who are against it to provide any evidence beyond mere speculation that doing business in these states is tougher than in other states. So far, nada.

ENDA also enjoys the supports not only of 70% of all Americans, but it also has the support of many major corporations. Over half of the Fortune 500 companies have non-discrimination of sexual orientation in their HR rules, and they continue to do so. If it were so costly, then these businesses would reverse it.

The anti-gay crowd always wants it both ways. When it comes to providing protections for gays, they always say that we are a tiny, tiny minority, only about 1% or maybe 3% of the population at most. So why should we spend so much time and energy catering to such a small number of people?

On the other hand, if we get ENDA, business will grind to a halt, if we get marriage, our entire society will collapse, if we can serve openly in the military our brave men in uniform won't be able to shoot straight and won't reenlist. In other words, there are SO MANY GAY people that any concession to our needs will hopelessly clog up the American Way of Life.

So which is it?

As for discrimation, there was a lawyer who graduated from the top of her class, and got a new job in the AG in Georgia. When she got married to her female partner, the AG found out and fired her. She sued, and took it to the Supreme Court of Georgia, and lost. So in Georgia, it is perfectly legal to fire a person merely because he or she is gay.

Doesn't look like the free market solved that problem
10.7.2007 11:23am
JosephSlater (mail):
(1) Brooks Lyman is correct about what the test is for sexual harrasment. ReaderY might be confused by the fact that *some* courts find that "bisexual" harrassing is not a violation of Title VII because the harrasser is abusing both men and women, and therefore the abuse (again, according to some but not all courts) is not "because of the sex" of the victim. But if any supervisor is harrassing just men, or just women, that's potentially actionable, and some courts would hold that harrassing both is actionable too. It's also worth noting that "harrasment," for the purposes of these laws, does not have to be "based on sexual attraction or romantic interest." If I consistent yell, scream, and otherwise abuse at women (or men), because I hate women (or men), that's sexual harrasment too.

(2) SenatorY. The effect of general "just cause" discharge rules on unemployment rates is a tricky question to resolve. Fortunately, as I noted above, we don't need to look to France or any other country, because right here in the U.S., we have already have laws barring discrimination in employment on the basis of sexual orientation -- the specific type of law in question here. Indeed such laws cover at least 1/3 of American workers already. If you have any evidence that this particular type of law has been a hardship on American employers, please do tell. But again, don't pretend we need to speculate based on experiences of rather different countries with different laws.
10.7.2007 11:49am
JosephSlater (mail):
"Consistent" should be "consistently" in the last sentence of para. (1) in my post above.
10.7.2007 11:50am
SenatorX (mail):
"Sorry, you lost that one in the 60s. You can't just not hire blacks just because it's your business. You also can't fire a woman if she becomes pregnant, or reaches the age of 50"

Sure you can, you just find some other reason to either not hire them in the first place or a plausible reason to fire them other than the discriminatory reason. This is the real world after all. Besides, if those laws worked why would you need affirmative action?
10.7.2007 1:17pm
JosephSlater (mail):
SenatorX:

Randy R. can speak for himself, but I believe his point was that the position that there should be no exceptions, or almost no exceptions, to the "at-will" employment doctrine has long been rejected in the U.S. and has, basically, no chance of coming back. The states and the Federal government have been carving out more and more exceptions in the past several decades, and this trend will not, I predict, be reversed.

Of course you're right that employers defend employment discrimination claims by pointing to legitimate, non-discriminatory reasons for the employer's acts. If it's as easy to do that as you suggest, then what's the big deal about protecting on the basis of sexual orientation?

Note: if your answer is "the costs of defending a suit, even if the employer wins," please provide some data suggesting that the costs to the many, many employers in the U.S. who operate under state and local laws that already bar employment discrimination on the basis of sexual orientation have been overly burdensome.

Of course all this is getting away from the original question -- should advocates of this type of law insist on including transgendered folks or not. I hope to hear more intelligent comments on that issue.
10.7.2007 2:36pm
Stephen Clark (mail):
JosephSlater is correct, but his point needs just a little updating. State and local gay-rights laws today already prohibit antigay employment discrimination in areas covering just over half the U.S. workforce, according to the National Lesbian and Gay Task Force.

The GAO has studied these laws and found that they have resulted in neither an explosion of litigation nor more than negligible costs. Those are red herrings used by ideologues.

The transgender issue is very tough. In the end, however, I am an incrementalist and come down on the side of passing the best bill you can whenever a window of opportunity opens. If Nancy Pelosi and Barney Frank do not believe an inclusive version is possible, then I'd pass the narrower version without "gender identity." We simply have no way of knowing how long any window of opportunity may remain open. We are potentially just one major terrorist strike away from another decade of GOP control of Congress, which would mean no window of opportunity to pass this bill for another decade. The need of transgender people is VERY compelling. The daily abuse suffered by some transgender people can be so horrendous as to approach some of the horrors racism, lynching included. That said, I still think it is asking too much for the transgender community to ask gay and lesbian employees in the South, Midwest, and Mountain West to wait potentially years and years for protection if it is possible to secure protection for those workers now. This legislative effort has been pending in Congress for over 30 years.
10.7.2007 3:36pm
Elliot123 (mail):
Josie: "Gay and lesbian workers are probably less than 5% of the work force. Trans workers are probably much less than 1%. Shockingly, employers can survive just fine while discriminating against such small minorities."

You don't give much credit to the intelligence and talents of gays, or the competitive pressures business faces. Employers definitely cannot ignore any 5% of the population when that 5% contains some of the top talent in the nation. It is very difficult to compete for the best people today. If I simply rejected a prospect because he was gay, my competition is going to sit there and giggle as they grab him.

However, I encourage my competition to get rid of all their gays and lesbians, and reject any such applicants, because god thinks they are icky. As a joke they can give them my business card as they kick them out.
10.7.2007 3:36pm
ScottS (mail):
Brooks: "Most" means the majority - in this case, I would suggest the vast majority. There's always some neanderthals around."

Look at the data: http://www.galluppoll.com/content/default.aspx?ci=1651

I wish it were the vast majority, but my experience and that of every gay person I know "suggests" otherwise. It really depends on where you live. Back in Ohio, my bf's house was egged, and we know plenty of people eased out of a job if not fired for being gay. Here in CA, we are invited over to the homes of some of our students (by their parents, ahem), yet, I can think of at least one blatently homophobic Assistant Principal whose head I had to go over in a personnel matter early in my career. I had a great 1st interview with a school district in Oregon, but on the phone they came right out and asked if I had a family. The interview ended shortly thereafter and I never heard from them again. Just because your friends don't crack fag jokes anymore doesn't mean that the vast majority of the country really gets it.


Brooks: I have no problem with "sex in the closet;"

Lol! I meant the broom closet at work, not the metaphorical closet.

"and any law that would allow one to contest a firing for such behavior on the grounds that one was GLBT, is defective, in my view. Sexual orientation or gender should not be an excuse for flouting accepted standards of decency"

1) you have not shown that the ENDA might enable one to contest a firing on these grounds.

2) even if you had, you might be expected to advocate for a better law.

"I have no use for employers who would fire someone for simply being gay"


That's nice. They still exist; there are, in fact, victims, and your indifference to their situation is apparent.

And where did I say that "it should remain legal for employers to fire people for being gay?"

If you oppose the ENDA, then you are in favor of it remaining legal to fire people for being gay. Just because you claim to oppose it on the more narrow ground of "unintended consequences" doesn't mean you don't oppose it. You expressed reservations about a law protecting gays and lesbians and then later on worried about NAMBLA. That pretty much outs you as a neandrethal.

I'm done with this troll. Sorry I took the bait, everyone.
10.7.2007 4:12pm
Mike Gallo (mail):
So, Randy, allow me to pose this question: If many major (Fortune 500 was the example you used) employers already have anti-discrimination rules in their Employee Handbooks (or HR rules, whichever) where not mandated by law, then hasn't the free market already started to solve the problem? My employer has such regs., and Wisconsin is an at-will employment state. I'd almost go out on a limb and say that points to them caring more about professional reputation (including the possibility of image-harming lawsuits) than the exact demograph of their skilled workforce.

Again, my main concern is that by legislating a response to this apparent problem of discrimination, it opens up anyone to claim to be a part of a "protected class." I'd rather see individual cases settled in civil court, though I do admit that makes a possible victim incur substantial cost that they probably shouldn't have to deal with.

Perhaps it's simply a matter of time before most employers are companies so large that many of these cases will be solved internally? I just don't see a company with an HR department and official complaint/review system as very susceptible to things like discrimination.

I certainly understand the LGBT community's sense of expediency when it comes to solving a problem such as this, seeing as new victims are created every day that the problem persists. I'm not trying to be insensitive to that with my contributions here, I'm just trying to see if there's a better solution out there.
10.7.2007 5:20pm
tim s (mail):
@mike s


Perhaps I am hopelessnly naive, but having been interviewed a couple dozen times for jobs, and having interviewed hundreds of other people for jobs, the subject of sexual orientation has never come up from either side of the table.


That's an easy point to refute - they are afraid of not getting the job.

When I ask about the firms domestic partner benefits it pretty much gives away the fact that I am gay. The responses from the other side of the table have ranged from "complete and utter shock" to "talking about his/her son/daughter thats gay." I know for a fact that I have not been asked back for additional interviews because of this simple question.

However - that does not mean I necessarily support these types of laws. I've seen too many times someone of color, or a woman who isn't qualified or is doing a bad job not removed because of fear of lawsuits.
10.7.2007 9:22pm
JosephSlater (mail):
I'm delighted to defer to Stephen Clark's updated figures, especially since I was thinking of Prof. Clark's earlier work in citing the 1/3 figure. At 1/2 the workforce already covered by such laws, the point that we have real experience to deal with is even stronger.

Mike Gallo:

Again, I'm not speaking for Randy R., but there are two responses to your point. Even if a large corporation has a policy against discrimination, it's not always clearly enforceable in any way (given that sometimes supervisors and managers in large corporations don't always toe the company line). Second, anti-discrimination laws are not needed just when a majority of employers are discriminating; they are also needed when anything like a significant minority are.

And I'm not sure what the concern is about worrying that "everybody" will be in a protected class. Under Title VII, everybody already is in a protected class -- in fact, everybody is already in several protected classes (their sex, their race, their national origin, their religion).
10.7.2007 10:07pm
Mike S.:
Maybe it comes from my being in Massachusetts, but if you asked either me or my HR guys about domestic partner benefits, we'd tell you what they are. In fact, we probably would have told you about them as family benefits (they are the same for spouses and partners) before you brought it up. Why have them if you won't use them to recruit?
10.7.2007 10:33pm
Randy R. (mail):
JosephSlater: Please, keep speaking for me. You do a better job than I do!

Gallo: "If many major (Fortune 500 was the example you used) employers already have anti-discrimination rules in their Employee Handbooks (or HR rules, whichever) where not mandated by law, then hasn't the free market already started to solve the problem?"

I said many, not all. You still have at least half of the entire workforce not covered. And, as Slater has stated, employer granted non-discrimination sometimes doesn't have the teeth that government mandated ones do.

And is *precisely* those corporation and companies that actually *refuse* to offer protection to gay and lesbian employees that are the problem. I'm not worried about getting fired from Starbucks if they find out I'm gay, I'm worried about Exxon/Mobile.

Hattip to the dude who found out about the GAO study. That pretty much stops any of this 'increased costs' dead in the water.

That, of course, won't stop people from arguing it, though, because like evolution, if it's science, it just must be wrong.
10.7.2007 11:46pm
IB Bill (mail) (www):
1. If someone on my staff ridiculed or picked on a co-worker, for whatever reason, I'd discipline them (up to termination) for violating our collegiality policy. "Whatever reason" includes sexual orientation. ENDA should not be an issue for company's with a collegial corporate culture, and who have their HR shit together.

2. My biggest concern about ENDA is about facilities -- bathrooms, locker rooms and the like. I think there's an exception there, but I couldn't decipher ENDA's legislativese yet. I think that means you have to go to the bathroom that correspond to your parts, but I'm not sure.

3. Pro-Enda types should also know that whenever you add someone to a protected group, hiring managers keep it mind. As in saying to themselves, "Remember, this candidate is in three protected groups, do I really want to risk it?"
10.8.2007 2:18am
Mark F. (mail):
In any case, a careful employer can get rid of anyone he wants for any reason he wants.

Generally true, you just have to be able to convince a jury that the "real" reason you fired someone wasn't illegal.
10.8.2007 2:18pm
Randy R. (mail):
IB Bill: "3. Pro-Enda types should also know that whenever you add someone to a protected group, hiring managers keep it mind. As in saying to themselves, "Remember, this candidate is in three protected groups, do I really want to risk it?"

Possibly. And if that happens, I'm sure we would have heard about it by now from the many states and local municipalities that already have a version of ENDA. But so far, there are no stats that show that gays are less likely to be hired in those areas.

Agreed about the HR departments. The problem isn't the good companies, the problem is the bad companies.
10.8.2007 2:51pm
Mad Professah (mail) (www):
One of the things that is so perpelexing about the people who are in favor of the "gay-only" ENDA like Aravosis and Crain is their simultaneous lack of ackowledgement of the salience of gender and complicated parsing of gender-stereotype jurisprudence. They make the argument that transgender people don't need to be included in pending federal legislation because "a man who wants to cut off his penis and install a vagina in its place" has nothing in common with a gay man. This completely ignores the umbrella nature of gender discrimination on LGBT individuals which has not been acknowledged by the Courts. It is to fill THIS lack that federal legislation is needed and the original ENDA (HR 2015) addressed.

Clearly what animates sexual orientation discrimination is the fact that (mostly, but not only, straight) men and women are offended by the presence of men (and women) who do not conform to their gender's "mandate" to 1) sleep with people of the opposite sex and 2) maintain distinct gender roles. (This is known as the Koppelman-Law theory of sexual orientation discrimination as sex discrimination. )Gay men and lesbians violate these two main precepts in various levels of obviousness (c.f. the very attractive gay man who is the crush of all the straight girls, the "lipstick lesbian" and the prissy, effeminate gay or the butch lesbian).

Transgender individuals violate precept (2) with their various presence, and this is so frightening to legislators and the general public that they can't even wrap their minds around the notion that most transgender people do not violate precept (1).
The jurisprudence in this area is NOT very well settled and anyone who claims that gender-noncorming individuals are protected under either Titlle VII or the Supreme Court's now hoary decision in Price Waterhouse hasn't reviewed the latest conflicting decisions.

And what's the big deal about bathrooms anyway? Why can't there be some percentage of bathrooms that are gender non-specific? Doesn't everyone have gender-non-specific bathrooms at home??
10.8.2007 3:14pm
Elliot123 (mail):
Elliot123: In any case, a careful employer can get rid of anyone he wants for any reason he wants.

Mark; Generally true, you just have to be able to convince a jury that the "real" reason you fired someone wasn't illegal.


Elliot123: That's true. However the careful employer doesn't set his goal as convincing a jury; that would be way too expensive. He aims to completely avoid the courts and get rid of the employee. Of course, the best way to deal with the situation is by careful and selective hiring. That reduces the probability of ensuing problems. And the best way to get rid of the employee is to have him leave of his own choice. This can be accomplished in any number of ways that are all perfectly legal.

A rational employer doesn't get rid of people because they are gay. That carries a high opportunity cost. But a rational employer also knows that he has to be careful in getting rid of an underperforming emoloyee who belongs to a protected group. It's really not a hard thing to do.

These laws mainly protect people from employers who are too dumb, or too emotional, or too talkative to do the job right. For everybody else, it's just another pitfall to avoid.

And the big thing about bathrooms? They cost money. Think the CEO's office has the most expensive furnishings? Wrong. It's those rooms down the hall marked "MEN" and "WOMEN."
10.8.2007 4:17pm
IB Bill (mail) (www):
The big thing about bathrooms is not only the cost, as Elliot123 said, but the idea that the federal government might be regulating business down to the bathrooms. It's one things to keep bathrooms up to code, which is a state and local thing. To me, it's just too much federal busybodyism.
10.8.2007 6:15pm
Dr. Jillian T. Weiss (mail) (www):
Your argument has some serious flaws. I agree with Lambda Legal. Lambda's main point is not about whether a sexual-orientation-only ENDA would have countered a single argument in a 30 page court opinion. Rather, it is arguing that a sexual-orientation-only ENDA would allow courts to add another argument against Dawson and people like her. It would allow the courts to make a sharp distinction between gender identity/expression and sexual orientation.

While a sexual-orientation-only ENDA would have allowed Dawson to make the argument that sexual-orientation discrimination is no longer permitted, her claim would nonetheless have been doomed. There was no evidence in the case that "sexual orientation" per se was the reason for her dismissal. In fact, the defendant made much of the fact that it employed other gay people. Her contention was that she looked and acted too gay for her employer - too butch and too mannish.

A sexual-orientation-only ENDA, particularly in the context of nonpassage of another bill on gender identity, would have allowed the defendant to argue that she wasn't dismissed because of her sexual orientation, but because of her gender expression. While you surmise that the court would have allowed her to make the Title VII gender stereotyping claim once the fear of sexual orientation claims is gone, another scenario is much more likely. It is more likely that the court would say that the gravamen of her claim is sexual orientation, because the gender stereotype used against her was the stereotype of a lesbian. Therefore, her sexual orientation claim fails because the employer has other gay employees and is not discriminating "because of" sexual orientation.

Beware of thinking too simplistically about civil rights legislation. Title VII has consistently been narrowed over the years by the courts, and it is likely that the same thing would happen with ENDA.

For more information about gender identity issues, see my blog, Transgender Workplace Diversity I also have a new book out, available on Amazon: "Transgender Workplace Diversity: Policy Tools, Training Issues and Communications Strategies for HR and Legal Professionals"

Jillian T. Weiss, J.D., Ph.D.
Associate Professor of Law and Society
Ramapo College
10.9.2007 9:05am
Dr. Jillian T. Weiss (mail) (www):
I've responded more in detail on my blog at http://transworkplace.blogspot.com Mr. Carpenter, you are so wrong.
10.9.2007 10:59am
Jennifer Levi (mail) (www):
Hi Dale. I have been interested to see your posts criticizing Lambda Legal's analysis suggesting that a federal law that only prohibits sexual orientation discrimination and not gender identity discrimination would not fully protect our community. Had I not worked for the last 10 years on these issues in both state and federal courts, I might have from a purely conceptual perspective accepted your purportedly closer reading of the law. However, I have to tell you, Lambda is totally right. It simply is true that increasingly we find employers subject to state sexual orientation law getting more sophisticated in the ways in which they discriminate. I routinely hear from the more visible (read gender non-conforming) members of the gay, lesbian, and bisexual community that they face serious discrimination, whereas I routinely hear from the less visible (read gender conforming) members of our community that things are just fine. However, you parse Dawson, the reality is that we know far more 13 years after the first ENDA was drafted and introduced than we do today. And so do employers; that's the problem.

Moreover, we have learned from the experience of the ADA and race discrimination laws that despite what the non-discrimination laws say about being remedial measures, the federal courts are not particularly generous in interpreting them. For example, the "regarded as" provision of the ADA, which was assuredly meant to have some significance, has been nearly interpreted out of existence. In the race context (where there isn't even a definition for courts to parse), cases where someone has faced discrimination as a result of racial expression (like a hairstyle, for example) have been determined not to be prohibited race discrimination. Why would we possibly expect a court to understand more about sexual orientation identity and be more generous with our community in interpreting a term defined in a limited way to mean, "homosexuality, heterosexuality, or bisexuality?"

For what it's worth, I found your Michigan piece on Lawrence to be very interesting. I guess I took away as one of its points that gay identity is far more complicated and nuanced than a definition that focuses on what you do in bed and who you do it with. That point (to the extent I then understood it) is completely consistent with what the legal groups have been saying about the narrow scope of a law focused on sexual identity.

In addition, it is simply wrong to say that "almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination." That was surely not so for the butch lesbian who told me she was fired from a job she had at a school for adolescent girls because it would be confusing for them to have an adult role model who did not fit the mold of being a stereotypical female. When she asked the school more specifically the problem it had with her, her employer said the problem was with her being a butch lesbian. The school would have been happy in litigation to trot out the 3 other lesbians (all more femme appearing) to prove that her sexual orientation alone was not the problem.

What we have learned in these early years of litigating under sexual orientation statutes is that problems of discrimination for the LGB community do not go away. Rather, discrimination shifts to the more visibly gay portion of the community.

Finally, on a more personal note, I will say that one of the reasons I feel so strongly about this issue is that I have seen in very painful ways how the least visible members of our community sail through and those (of whom I include myself) who more obviously challenge stereotypes face rampant and pervasive discrimination. Dale, it would be hard to say that this was not true during our law school years.

Isn't the point of the law to be aspirational with regard to who we protect so that we do shift cultural norms about the acceptability of treating adversely those who are different from ourselves in ways unrelated to their abilities? Thank god we know more 13 years after taking a stab at an initial draft of a federal law than we did at the outset. Why wouldn't we want to take all that we have learned and advance the most comprehensive law for our community.

Yes, I support protecting transgender people as well. But that is far from the only reason to support a fully inclusive ENDA.

DC: Jennifer, it's great to have the perspective of a very knowledgeable and effective litigator like you on these issues. If I were an experienced plaintiff's lawyer like you, I would want as broad a set of civil-rights laws as I could get so that I would have instances of discrimination covered in every possible way, whether it was based on sexual orientation, gender identity, some combination or overlap of these, or something else. I would especially want the broadest possible coverage in an era when courts seem increasingly to read the liability and remedial provisions of civil-rights statutes quite narrowly. If the choice were, then, between an ENDA that included both gender identity and sexual orientation and an ENDA that included only sexual orientation, that would be an easy call. But if Barney Frank is right that the votes aren't there right now for a trans-inclusive ENDA, and I certainly don't have the political acumen or inside knowledge of Congress to say that he's wrong, the real choice right now is between a "gay-only" ENDA and no ENDA.

Given that choice, I think a good litigator would want the gay-only ENDA unless you thought it would do more damage than good or would accomplish so little good that other considerations (of fairness to trans people or justice or something else) would override.

And I think an excellent litigator like you would take a gay-only ENDA and accomplish quite a bit for a client in the position of your friend at the school that fires the masculine lesbian but says it has nothing against lesbians. On the one hand, I think you would argue that if the school fired her for being a lesbian you have a claim under the newly passed, gay-only ENDA. You'd point to the times she was called a "dyke" and told to find man to please her and turn her into a real woman. You would observe that the fact that the school employs other lesbians is no more a defense to the claim than the fact that an employer hires some black people is a defense to a claim of racism.

On the other hand, if the employer tried to weasel its way out of ENDA liability by saying that it fired her for being too butch, you'd say that it was then liable for sex stereotyping under Title VII. Either way, the employer is stuck. And if the employer, citing Lambda's letter to Barney Frank, tried to make the argument that Congress had silently repealed two decades' worth of Title VII precedent on sex stereotyping by enacting an entirely separate federal law, you'd make the argument that this was not even a plausible interpretation. ENDA is not an amendment of Title VII, your brief would start. Then you'd present the much more obvious reasons why "gender identity" wasn't included. And finally, you'd point to the total lack of any legislative history to support this desperate employer's strained interpretation.

It's always possible that, against your excellent lawyering and brief-writing, a court would strain to dismiss your clients' claims. But then you'd have an appeal. And if you really distrust even our conservative courts so much that you think not one of them is capable of making a principled (as opposed to result-oriented) decision on a clear matter of liability and remedy, you really must despair about whether the addition of *any* magic words like "gender identity" is going to save your case.

I agree that we've learned a lot in the past 13 years since ENDA was first introduced as a gay-only bill. Indeed, our experience with gay-only civil rights legislation goes back about three decades, to the time when cities and states were first adopting such laws. And one thing we have learned is that in all of that time there is not a single reported decision at either the state or federal level in which an employer successfully made the acrobatic legal maneuver Lambda says it fears, under which an employer convinced a court it discriminated against a homosexual not because of sexual orientation but because of gender nonconformity. Discrimination may have shifted to more visible (i.e., gender-bending) portions of the gay community as you suggest, but a gay-only ENDA will still give them relief when they're fired for being gay. And if ENDA does not do so, if the employer manages to hoodwink a judge into believing that it really objected to the person's gender-bending, Title VII will still be there.

Civil rights law is aspirational, as you suggest. It points to a future without irrational prejudice in certain areas of life, like employment. But it cannot aspire to anything if it cannot be enacted. Enacting a gay-only ENDA will advance the aspirational goals of civil rights, and make them a reality instead of only a hope.
10.9.2007 5:48pm
Dr. Jillian T. Weiss (mail) (www):
Quote from DC: "And if the employer, citing Lambda's letter to Barney Frank, tried to make the argument that Congress had silently repealed two decades' worth of Title VII precedent on sex stereotyping by enacting an entirely separate federal law, you'd make the argument that this was not even a plausible interpretation."

If one looks at federal Title VII cases such arguments are commonplace. See, e.g., Voyles v. Ralph K. Davies Medical Center, 403 F.Supp. 456 (D.C.Cal. 1975); Smith v. Liberty Mut. Ins. Co., 1973 WL 11513, 11 Fair Empl.Prac.Cas. (BNA) 732 (N.D.Ga. Dec 06, 1973) (NO. 17499), aff'd, Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 17 Fair Empl.Prac.Cas. (BNA) 28, 16 Empl. Prac. Dec. P 8178 (5th Cir.(Ga.) Mar 13, 1978) (NO. 75-3230); Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir.1984), Etsitty v. Utah Tranit Authority, 2005 WL 1505610 (D.Utah Jun 24, 2005). Every one of these cases contains an argument that Congressional action or nonaction on proposed language in bills permits an inference about an existing statute. It's not right, but they did it. In Voyles, for example, Judge Spencer Williams argued that Congress understood that "sex" did not include "sex reassignment" because legislation had recently been proposed to add "sexual affection and preference" to Title VII. If Congress understood Title VII to include "sexual affection and preference," reasoned Judge Williams, then no such legislation would be necessary.

The argument that courts would not similarly interpret a sexual-orientation-only ENDA seems difficult to sustain.

Jillian T. Weiss
Associate Professor of Law and Society
Ramapo College

DC: I'm afraid this post, and your earlier comments, contain some basic misunderstandings about how statutory interpretation works. This is a complex matter, so I understand why there might be confusion. It would not be unusual for a court, as in the cases you cite, to claim that the failure to include something in Statute A (Title VII) should influence how we interpret Statute A (Title VII). It is another thing entirely to suggest that (1) mere failure to include a phrase ("gender identity") (2) in the passage of Statute B (a limited ENDA) should be interpreted (3) to overrule two decades of federal court interpretation (sex stereotyping)(4) under Statute A (Title VII).

There is no precedent I have ever seen for that style of statutory interpretation. That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice.
10.10.2007 11:21pm