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Lambda's ENDA:

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

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

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

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

CrazyTrain (mail):
I think Lambda is missing it bigtime here. First, this is a huge symbolic step for gay people. Who would have thought that in 2004 with the slew of bigoted propositions passing in state referenda that they'd be in a position to get something like this pass the House in just a few short years. Second, Bush is going to veto anything anyway so this is much ado about symbolism, and the symbolism of getting a "gay rights" bill passed at the federal level far outweigh the symbolism of that bill excluding trangendered people -- the country is just not there yet on transgender. I for one still have a hard time accepting trangendered people even though I know I am being irrational. It's people like me however that ten years ago would have been against a "gay rights" bill at the federal level that have changed their views in recent years (mainly due the hatred on the other side). People like me will probably move in the next ten years to acceptance of trangender protection as well. Why kill the symbolism here over this??
10.18.2007 6:58pm
Earnest Iconoclast (mail) (www):
A tangential question... given that enforcing gender stereotypes is a form of discrimination, is it legal to have a dress code that specifies different clothes (hair/jewelry) for different genders?

In other words, if I choose to wear a skirt or dress to work, is my employer legally permitted to stop me and/or take action against me?

EI
10.18.2007 7:41pm
happylee:
Boys who want to be girls and girls who want to be boys are suffering a mental illness;. Why exactly does Lambda push for protections instead of cures? And why is it irrational to wish to avoid working with people suffering a mental illness?

On another note, regardless of whether wanting to alter one's sex is an illness, the obvious libertarian position would be, why does the State have the right to force one set of people (say employers) to work with another set (say gays)?

Policy considerations aside, Machiavelli would endorse Barney's position. Incrementalism, baby.
10.18.2007 7:52pm
Tek Jansen:
Thanks for the detailed post Dale. Despite always saying LGBT and for the most part sharing the same political goals, Lambda's view on ENDA highlights that the immediate interests of LGB don't always align with the T's. I'm happy to be grouped with the T's and to help them fight, but I also the T's to support my political interests, no work against them. Maybe the T's are worried that they are a much smaller group and will be left behind by the LGBs, but fomenting divisions within the LGBT community seems like it would only encourage the LGBs to leave the Ts behind.
10.18.2007 8:23pm
Randy R. (mail):
" why does the State have the right to force one set of people (say employers) to work with another set (say gays)? "

Good question, Happylee. Perhaps for the same reason that the State has the right to force one set of people (say whites) to work with another set (say blacks. Or women. Or jews.)

And not to worry -- you can't catch gay. So employers are safe from turning into crazed sexoholics.
10.18.2007 8:37pm
Grange95 (mail):
Excellent analysis. As a gay man, I'm baffled by why some gay rights groups are so willing to sacrifice major legislative victories over small points of "principle" (e.g., ENDA without transsexuals, civil unions without the "marriage" label). Better to take the half loaf now and come back in a few years for the rest, after the public has a chance to adjust and realize that their fears never materialized. Frankly, for ENDA and civil unions, it's more like 95% of a loaf ... as my property law prof always said, "Pigs get fat, hogs get slaughtered."
10.18.2007 8:41pm
bkleinman (mail) (www):
EI, I think the state of the law is that an employer probably can require gender appropriate clothing. This is, to some degree, why I think it's important to include gender in ENDA.

Basically, Jesperson (9th Circuit) allows an employer to fire a woman for not complying with female appropriate grooming standards (in that case, I believe it was a minimum hair length and basic makeup minimums). Other case law allows employers to have maximum hair length standards for men but not for women, and to prohibit men from wearing earrings while allowing women to do so. Courts allow all this by saying that requiring conformity to societally normative standards is not sex discrimination. If things that (1) a court considers minor (like lipstick, earrings, and hair length) are (2) societally normative for a person of a particular sex (ie, gender normative) then an employer can require them without violating sex discrimination law.

Adding different types of sexuality won't end this form of discrimination. Adding protection to gender expression most likely will -- almost by definition my decision to wear earrings or not is an expression of my gender identity (not my sexuality and not my sex). In the face of an explicit statute preventing gender expression discrimination, I don't see how a court could continue to allow this type of discrimination.
10.18.2007 9:05pm
Algernon (mail):
Has anyone expained to gays that by being classified as a protected group under employment laws — and thus being potential plaintiffs filing complaints and actions against employers — they make themselves less likely to be hired in the first place — at a point where proving discrimination is difficult or impossible?

Better to not hire a gay at the outset for whatever stated reason than to hire one and take on the risk of being sued if he or she turns out to be a dud who must be discharged. Once again the unintended consequences of stupid laws -- not to mention unconstitutional -- will hurt those they are supposedly designed to help.
10.18.2007 9:05pm
David M. Nieporent (www):
Good question, Happylee. Perhaps for the same reason that the State has the right to force one set of people (say whites) to work with another set (say blacks. Or women. Or jews.)
And, other than the state having more guns, that reason would be...
10.18.2007 10:14pm
A non:
Interesting analysis -- great post!

The analysis of the legislative history is a good example why it is a difficult guide to the meaning of the law. However, what I'm really curious about is the part of the constitution which authorizes Congress to regulate private employment. I have just carefully gone over the Constitution (as amended) and can't seem to find the article discussing such laws. I'm sure the authority does not derive from Article I or the 14th amendment. Does this law then "regulate commerce among the several states" ?
10.18.2007 10:51pm
jrose:
A non: ENDA's provisions are limited to employers engaged in an industry affecting interstate commerce

Dale: To erase all doubt, why not include a provision that explicitly says the law shall not be construed to be reverse or otherwise limit Price Waterhouse.

On the politics: How many votes short is the inclusive version of ENDA? Assuming the non-inclusive ENDA passes, how many votes short is a stand-alone statute protecting the transgendered?
10.18.2007 11:22pm
J. F. Thomas (mail):
And why is it irrational to wish to avoid working with people suffering a mental illness?

Actually, if as you say being a homosexual were a mental illness, it would be covered under the ADA and discriminating against persons "suffering" from homosexuality would be illegal. In fact employers would be required to provide reasonable accommodation for homosexuals (say lots of plaid office furniture for lesbians and show tunes instead of Muzak for gay men).
10.18.2007 11:25pm
Crane (mail):
Has anyone expained to gays that by being classified as a protected group under employment laws — and thus being potential plaintiffs filing complaints and actions against employers — they make themselves less likely to be hired in the first place — at a point where proving discrimination is difficult or impossible?

Good point. You'd better go explain that to blacks, Jews, and women, too. When will these foolish minorities learn?
10.18.2007 11:33pm
Houston Lawyer:
When do Republicans become a protected group? It appears that many academic positions are unavailable to them because of viewpoint discrimination.

So the Catholic church will now be required to hire gay priests. That's been working out well so far, but will it be a defense in civil suits that they had to hire them?
10.19.2007 12:40am
Stephen Clark (mail) (www):
bkleinman inadvertently raises an excellent point. For all Lambda's expressed concern about butch lesbians, section 8(a)(4) of the "inclusive" ENDA would expressly allow employers to continue to maintain sex-differentiated dress and grooming codes. That means employers can continue to require women to wear makeup and men none, women to wear skirts and men pants, women to wear long hair and men short. Title VII allows this, and section 8(a)(4) of the "inclusive" ENDA would continue to allow it.

The only thing the "inclusive" ENDA would change is that it would require employers to treat transitioning transsexuals according to their destination sex. So the employer that forces women employees to wear makeup, skirts, and long hair would have to equally force male-to-female transsexuals to wear makeup, skirts, and long hair.

The butch lesbian, about whom Lambda sheds so many crocodile tears, would have no remedy under even the "inclusive" ENDA if an employer fired or refused to hire her because she would not wear makeup, insisted upon wearing pants, or had close-cropped hair. Lambda's concern about "excluding" people from ENDA, then, actually extends only to T's, not butch L's.

This underscores Dale's point that Lambda's broader claim about gender-nonconformity is a mere diversionary tactic. It is a cynical ploy to convince rank-and-file gays and lesbians that the fight over inclusion of "gender identity" is critical to their own employment opportunities, when it really isn't. Lambda's willingness to manipulate rank-and-file gays and lesbians into thinking they are working for their own interests while persuading them to defeat a gay-only bill that would adequately protect them is nothing short of contemptible. Dale is exactly right to identify the question as whether gays and lesbians should wait for transgender people. I too respect disagreement on that point. But I find Lambda's attempt at manipulative evasion of that stark question to be downright disgusting.
10.19.2007 1:15am
Stephen Clark (mail) (www):
Sadly, Grange95 is exactly right.

How many marriage-or-nothing challenges does Lambda have to lose and how many years of ENDA delay does Lambda have to exact before someone there finally realizes that the organization's stangulation on ideological purity has rendered it an ineffective and even self-destructive legal representative for lesbians and gay men? Ideological purity is for the ivory tower, not the courtroom or legislative chamber. Ask Nader 2000 supporters what ideological purity got them.
10.19.2007 1:22am
Randy R. (mail):
Algernon: "Has anyone expained to gays that by being classified as a protected group under employment laws — and thus being potential plaintiffs filing complaints and actions against employers — they make themselves less likely to be hired in the first place."

Nope. That's because about 12 states or so already have ENDA, and dozens of local municipalities also have a form of ENDA. Additionally, a majority of Fortune 500 companies provide protection of gays in their HR. Most experts estimate that about 1/3 or more of the workforce is already covered by ENDA.

Therefore, there is already a sizeable portion of the working population that is laboring under some form of ENDA, and to date, there have been no studies which support that notion that it leads to greater litigation, frivolous lawsuits, or a reduction in employment of gay people.

Houston Lawyer: "So the Catholic church will now be required to hire gay priests."

(sigh). As you are fully aware, religious institutions are completely exempt from ENDA. Got any other smears?

"but will it be a defense in civil suits that they had to hire them?" And why, pray tell, would there be a civil suit in the first place?

Oh. I get it. All gays are pedophiles. Therefore, people will bring lawsuits because of the child abuse.
But no, you're not homophobic, right?
10.19.2007 2:30am
Daniel Chapman (mail):
Actually, from what I heard, the vast majority of the abuse cases involved post-pubescent boys. It's child abuse, but it ain't pedophilia.
10.19.2007 2:43am
Cornellian (mail):
So the Catholic church will now be required to hire gay priests.

Yes, much as they've been forced to hire female priests . . . .
10.19.2007 3:32am
Cornellian (mail):
However, what I'm really curious about is the part of the constitution which authorizes Congress to regulate private employment.

Under the way federalism works in the US today, the federal government regulate pretty much anything it wants. By far the largest chunk of this authority comes from the interstate commerce clause. This was not always the case and at one time such legislation would have been considered beyond the authority of the federal government other than certain federal-specific situations, such as in federal territories or federal goverment employment. This all changed when FDR began appointing supreme court judges who took an extremely expansive view of the scope of the commerce clause. Since then the interpretation of the clause has expanded to cover nearly anything. There has been the occasional hiccup along the way (e.g. U.S. v. Lopez / Morrison) but by and large the court has never retreated from that position, nor is either political party interested in changing that state of affairs.

The way the commerce clause now works (with some minor oversimplification) is, for any economic activity you aggregate all such activity in the country and if the aggregate of that activity affects interstate commerce than the feds can regulate it. Thus, regulating even individual private hiring decisions is well within the scope of the commerce clause as it's interpreted today, as all hiring decisions in the aggregate have a huge impact on interstate commerce.
10.19.2007 3:42am
Cornellian (mail):
" why does the State have the right to force one set of people (say employers) to work with another set (say gays)? "

Perhaps for the same reason that the State has the right to force one set of people (say whites) to work with another set (say blacks. Or women. Or jews.)


And, other than the state having more guns, that reason would be...

The guns give them the power, not the right. The government's legal right to do so comes from the fact that the constitution (federal or state) says the federal government or the state government or both are able to do so. The moral right comes from the fact that a democratically elected government decided your right to transact business doesn't include the right to discriminate on the grounds of race or gender except in limited circumstances. Perhaps that's an erroneous judgment on their part, but you'll need more than a bare assertion to convince anyone of that.
10.19.2007 3:50am
A non:
According to the link kindly provided by jrose (probably to existing anti-discrimination legislation), it seems that what is covered is hiring which "affects commerce" (no mention of interstate commerce, interestingly enough).

It would be amusing to ask the Congressmen who voted for this law whether they think private companies should be allowed to implement "don't ask -- don't tell" policies. After all, don't private quasi-military companies such as blackwater face the same problems with openly gay employees that the military does?

Indeed, the definition at link above exempts the Federal Government as an employer from anti-discrimination laws, but this seems to me to get the issue exactly backwards: Congress should prohibit the Federal Government from discriminating based on sexual orientation/identity/etc, and let private people run their businesses they way they see fit.
10.19.2007 4:34am
Alpha Squad 7 (mail):
When do Republicans become a protected group?

Are you volunteering to help Larry Craig in his legal battles?
10.19.2007 4:42am
Alpha Squad 7 (mail):
it seems that what is covered is hiring which "affects commerce" (no mention of interstate commerce, interestingly enough).

Wrong: The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

After all, don't private quasi-military companies such as blackwater face the same problems with openly gay employees that the military does?

Ah, so the gay mafia at Blackwater was behind that shootout in Iraq--makes perfect sense! What kind of "problems" are you imagining? The problem that you don't like gay people? Other people--including many in the military--are, thankfully, more mature than you.
10.19.2007 4:48am
Jon W. Davidson, Legal Director, Lambda Legal (mail) (www):
We clearly have some things about which we agree, Dale, and some things about which we disagree. My perspective comes from my twenty years litigating these and related issues in state and federal courts across the nation and it is joined by the lawyers who have more experience using antidiscrimination laws to protect lesbian, gay and bisexual people in this country than anyone else.

We believe that a law that prohibits both discrimination based on sexual orientation and discrimination based on gender identity and expression will be a stronger law than one that prohbits only sexual orientation discrimination. That seems hard to dispute.

The real question right now is how best to move forward toward the next time Congress will consider protective employment discrimination legisaltion. Given that Congressman Frank has stated he does not expect the Senate even to consider any version of ENDA this year and that, even if the Senate did and passed such a bill, he doubts President Bush would sign it, we all need to look ahead. Lambda Legal does not believe the best path is the politics of division -- pitting lesbians, gay men and bisexuals against transgender people, as some have sought to do.

To be very clear about something, we are not asserting that adoption of a "sexual orientation only" bill could be found to repeal and disapprove the holding of Price Waterhouse v. Hopkins. We are asserting that, absent codification of Price Waterhouse (which H.R. 2015, the version of ENDA originally introduced this year would have done, if enacted), an employer could argue and a court might find that perceived sexual orientation ("I think you're gay, and don't like that") is not the same thing as perceived gender identity and expression ("I don't care if you're gay; I just think you're effeminate or butch, and don't like that") and might at the same time seek to distinguish (or, at the Supreme Court, reverse) Price Waterhouse. You apprently feel that's unlikely. We hope you are right.

Instead of fighting one another, however, we believe what we all should be doing is working together towards passage by the next Congress of the strongest law we can get. In the judgment of Lambda Legal, all of the other principal LGBT legal groups in the country, and 300 or so other LGBT organizations, the way of doing that is to work toward getting the best law actually enacted into law (rather than making what only is a symbolic statement now by passing some bill through only one house of Congress), and the best law is one that (1) prohlbits discrimination against transgender people and (2) fully protects lesbians, gay men, and bisexuals against sexual orientation and codifies Price Waterhouse into statutory language. That is why we are supporting Congressmember Tammy Baldwin's proposed amendment to H.R. 3685, being considered on the House floor next week.

The premise that the interests of transgender people need to be sacrified now to get a "gay rights only" bill later has not been shown to be true. If, as hoped, we have a more LGBT-friendly Congress and administration after the next election, we think we will be able to get a law passed that protects transgender people and better protects gay people if we hold together, put the necessary resources into working for it, and not act like this is a zero sum game.

Jon W. Davidson
Legal Director
Lambda Legal

DC: I appreciate your response, Jon, and the experience that both you and other lawyers at Lambda bring to the debate over the legal value of the limited ENDA, H.R. 3685. Frankly, if almost anybody else had made the sorts of arguments Lambda has made about H.R. 3685 over the past few weeks I would not have responded. But it is possible, just possible, that even very experienced litigators like Lambda's lawyers can have their usually sharp legal analysis clouded by heartfelt moral and ideological commitments.

I'm glad Lambda is now saying that it does not believe there's a plausible argument that H.R. 3685 impliedly overrules the sex-stereotyping protections in Title VII by omitting "gender identity." It had seemed to me that was the import of Lambda's concerns, but I'll take your word for it that that's not what you meant. Others in the blogosphere have continued to voice this very dubious fear and it's good to have Lambda say it's not a realistic one.

On the other hand, you continue to assert that the Supreme Court might overrule Price Waterhouse. For reasons discussed in the post, I see no reason to fear that. If that was the real concern, however, it could have been addressed in separate federal legislation (or perhaps even in ENDA) through a substantively narrower provision. Adding "gender identity" to ENDA, I think you'll agree, goes beyond simply codifying existing understandings of Price Waterhouse. For that reason, "gender identity" has drawn objections from Congress that would not have arisen under a simple codification of Title VII case law.

I am less confident than you that the Senate won't address ENDA in this session or even that a presidential veto is certain. I would think Democratic leaders in the Senate, mindful of the strong support they have been given by gay Americans, would consider a historic bill that would protect millions of gay Americans from employment discrimination. President Bush probably won't sign any version of ENDA but the outcome is less certain on this point than on the Hate Crimes bill -- so praised by Lambda and the 300 gay and trans organizations now aligned against ENDA -- which the president's advisors have all but said he will veto. Doubts about the president's signature should not factor into passage of ENDA, just as they didn't factor into passage of the Hate Crimes bill. At any rate, if the political dynamics of the House, under which "gender identity" is thought to make ENDA un-passable, apply to the Senate and to the president's consideration of the bill, then adding "gender identity" makes enactment this year even more doubtful than it would be for the gay-only ENDA. A limited ENDA has a better chance of being enacted right now than an expansive ENDA.

I wouldn't waste this opportunity by counting on the next Congress and president to be more "GLBT friendly" than this one. A lot can happen between now and November 2008 to make the Democrats' prospects dimmer than they seem now. You may look back on October 2007 as a "golden age" when a friendly Congress was on the verge of approving the first-ever gay-rights bill. This time may pass and not come again for a long while.

An advantage of pressing forward with a limited ENDA that can pass the House now -- even if it cannot be enacted -- is that it gets moderate/conservative Democrats and moderate Republicans on record as supporting civil rights for gay Americans. (I note that four Republicans supported the limited ENDA in the Labor Committee yesterday, offsetting the four Democrats who opposed it because it did not include "gender identity.") That record of support can then be used as a buttress in a future vote in Congress on the issue when the mood of the country and of the Congress may otherwise be more conservative and less "GLBT friendly." We can, in that darker time, remind wavering moderate/conservative Democrats and moderate Republicans of their earlier support for H.R. 3685.

But pressing ahead prematurely now with a vote on a symbolic bill that includes both sexual orientation and gender identity risks drawing unnecessary "no" votes from moderate/conservative Democrats and moderate Republicans, so that we don't get their support for gay civil rights on the record in an actual vote. It also risks committing them on the record to opposition to trans rights before adequate work has been done to persuade them to support trans rights. It's hard for me to see how that approach, as a political matter, helps either gay people or transgendered people.

So I guess I agree with you that we're not playing a zero-sum game in which advancing the interests of gay Americans means sacrificing the interests of transsexuals. Advancing a gay-only ENDA in the House builds momentum for eventual passage of civil rights protections for both, while witnessing the defeat of a feel-good "inclusive" bill potentially hurts both.
10.19.2007 8:45am
jrose:
Jon Davidson:

I'm not persuaded that passing a GLB ENDA is merely for show. Doesn't the Senate have both the rest of this year and all of next year to act?

Given that there are not enough votes to protect the transgendered, are there at least enough votes to codify Price Waterhouse?

How many votes short is the GLBT ENDA? Assuming a GLB ENDA passes now, how many votes short is a separate statute which extends protections to the transgendered?
10.19.2007 10:14am
A non:
Alpha Squad 7: Of course I don't think there are problems with gays being employed by military contractors, or by anyone else. In fact, I was specifically arguing that ENDA should apply to the armed forces.

What I was pointing out was that Congress thinks there would be problems if openly gay men and women were allowed to serve (hence "don't ask -- don't tell"). Whatever these imagined problems are, in ENDA Congress is telling private employers to "live with the problems", while exempting themselves (as employers) from having to do so. That is not right. Discrimination by the government is much worse than by private individuals, and should be fixed first.
10.19.2007 11:25am
occidental tourist (mail):

And, other than the state having more guns, that reason would be...

The guns give them the power, not the right. The government's legal right to do so comes from the fact that the constitution (federal or state) says the federal government or the state government or both are able to do so. The moral right comes from the fact that a democratically elected government decided your right to transact business doesn't include the right to discriminate on the grounds of race or gender except in limited circumstances.


This is a pretty silly argument for someone defending a minority right under the premise that majoritarian rule must take cognizance of the limits to its power inherent in a regime of individual rights.

The fact that progressive and positivist rights oriented courts have said that this is what the constitution says, may make it pragmatically or temporally so, but not philosophically or truthfully thus. It certainly doesn't limit the idea in abstract debate that this proposition if flawed which was the obvious meaning of the post you criticize.

Brian
10.19.2007 11:30am
Nifonged:
Algernon may have had a point.

http://sports.espn.go.com/ncf/news/story?id=3070227

First minority college football coach in the state wins lawsuit, notwithstanding his team's abysmal performance on the field. Think UL-L is going to rush to hire another minority coach?
10.19.2007 11:44am
Cornellian (mail):
The fact that progressive and positivist rights oriented courts have said that this is what the constitution says, may make it pragmatically or temporally so, but not philosophically or truthfully thus.

I didn't cite any court decisions in my post, nor was I relying on any particular court decision. If you think the constitution prohibits both the federal and state governments from regulating the way you transact business, feel free to identify the text that you think accomplishes this result.
10.19.2007 11:52am
JosephSlater (mail):
I'm always intrigued at how opponents of employment discrimination laws alternately argue that:

(1) It will result in, say, whites and men losing jobs to under-qualified blacks and women, because employers will be afraid they will be sued for not hiring members of the latter group; and also

(2) It will result in employers not hiring (or hiring fewer) members of the groups protected because they will afraid they can't fire them because of law suits.

Of course, there is data on employment rates of groups covered by existing Title VII laws, and as Randy R. observed above, there is plenty of experience specifically with laws preventing discrimination on the basis of sexual orientation right here in the U.S. (I believe Professor Clark has estimated that now fully 1/2 of U.S. employees are covered by such laws). Anybody seriously wishing to make an argument that discrimination laws actually hurt gays and lesbians might, therefore, feel some obligation to come up with some evidence for that position based on experience.
10.19.2007 12:28pm
fennel:
Great post. I think LAMDA is basically right that the federal judiciary (especially at the trial court level) does and will bend over backwards to kick discrimination plaintiffs, no matter what law or theory they are suing under. I wouldn't put it past a few certain federal judges to use a limited ENDA to limit the reach of Price Waterhouse. With that said, as Dale argues quite persuasively, this should be losing argument, if the laws are applied faithfully. We can't make our legislative agenda captive to the potential rulings of activist judges.

One solution might be for Congress to pass a limited ENDA but also codify the holding of Price Waterhouse (in a nutshell, discrimination because of failure to conform to sex stereotypes is discrimination "because of sex."), much in the same way Congress codified the disparate impact theory of discrimination when it passed the 1991 Civil Rights Act.
10.19.2007 12:57pm
ellisz (mail):
I'm curious - how would the law work in practice if the plaintiff's homosexuality is contested?

for ex - plaintiff says "I was fired b/c I'm gay." Employer says "no, you weren't, plus we don't even know if you're gay."

what then?
10.19.2007 2:44pm
Harry Eagar (mail):
So, say I'm interviewing for an open position. How am I supposed to know that the applicant is/is not a transsexual?
10.19.2007 3:08pm
CJColucci:
ellisz:
There actually are cases -- not many, but more than you might think -- where the defense to "You fired me because I'm a [fill in the blank]!" is: "What? You're a [fill in the blank]?" It is a defense and it sometimes works.
10.19.2007 3:14pm
jdh (mail) (www):
Please insert the following:

1. standard libertarian argument for freedom of association, including employment
2. standard libertarian argument that bill is wrong

thanks
10.19.2007 3:32pm
ellisz (mail):
CJC - yep, that defense is fairly common in retaliation cases - pl will say 'you retal vs me for complaining about harassment', and decisionmaker says " didn't know you complained. . ."

on the merits of incl gender identity in the bill - I understand this is a hot button issue in academia. But I don't think the avg citizen has a clue what it means, and am not sure it makes sense to create a brand new protected class of folks who most people don't think of as a class.

finally - would gay owned companies be liable for not hiring a straight person under the bill, or is there a BFOQ exception in there?
10.19.2007 4:21pm
Crunchy Frog:

So, say I'm interviewing for an open position. How am I supposed to know that the applicant is/is not a transsexual?


Lessee... looks like a girl, but has a big adam's apple, and sounds like Barry White?

Quoth the rabbit: "Ehh... could be."
10.19.2007 4:32pm
Mark F. (mail):
I suppose there is no arguing with someone who believes that it is morally right to compel an employment contract.
10.19.2007 4:39pm
occidental tourist (mail):

The fact that progressive and positivist rights oriented courts have said that this is what the constitution says, may make it pragmatically or temporally so, but not philosophically or truthfully thus.

I didn't cite any court decisions in my post, nor was I relying on any particular court decision. If you think the constitution prohibits both the federal and state governments from regulating the way you transact business, feel free to identify the text that you think accomplishes this result.


It is an artificial precedent based distinction to suggest that your freedom of association is different when conducting business than in other spheres of life. If a police power regulation is instituted for health and safety, so be it. I do not see any traditional police power nexus for state imposition of anti-discriminatory hiring practices on private business that could be conceived of as outweighing the individual liberties enumerated and unenumerated in the constitution.

If, on the federal side, a commerce clause regulation is instituted on an honest theory of why it is necessary and proper to so regulate interstate commerce this might be plausible, but such federal action oversteps its bounds in my opinion when it reaches essentially instate businesses the hiring practices of which are at best indirectly related to interstate commerce.
10.19.2007 4:52pm
happylee:
Yikes, I just realized that if I were to start a private school, I'd have to hire gays and mentally ill people, even if a similarly qualified straight and healthy person was available. Poof, another generation of kids ruined.

And for those who argue "oh, no, it just means you can't 'discriminate' between 'equally' qualified candidates." Ho, ho, ho, have lunch with a man or womyn who practices employment law someday (not teaches it but practices) and report back then.

Soon we can all live the crazy lifestyle of NipTuck characters.

(And we all know the State derives its "right" to pass laws from its might. That's how it can in one generation it can blithely pass laws forbidding blacks and whites from being together and then, in another generation, pass laws forbidding whites and black from being apart. Naive is he (or her, or it, or was-her, or was-he) who thinks the State and its actors think anything is of value but power itself. Otherwise, it would let folks be, uh, "Free to Choose.")
10.19.2007 4:54pm
JosephSlater (mail):
There are indeed discrimination cases where the employer's defense is, "I didn't know she was a []": usually those cases are religious discrimination cases, although retaliation cases are a good analogy.

Re the "standard libertarian arguments," brevity is the soul of wit, so points for that. The standard response, of course, is (i) the Constitution gives Congress the power to pass employment discrimination laws under the Commerce Clause and for some groups also the 14th Amendment; (ii) that is an area of jurisprudence that, pace happylee's comment, highly unlikely to change; and (iii) even if you think the Fed government doesn't have the power to do it, state and local governments are doing it anyway.

And Happylee, I practiced labor and employment law for over a decade, and I'll ask you what I asked upthread. Your argument that you would be "forced" to hire a women, black, disabled person, etc. is inconsistent with the arguments others have made in this very thread that these laws hurt the groups they are supposed to protect because employers WON'T hire them for fear of lawsuits if the employer wants to fire them. Who is right: you, or the people making the latter argument?
10.19.2007 5:08pm
Law & Order fan:
Someone needs to ask Fred Thompson in a debate whether he really fired Serena for being lesbian.
10.19.2007 5:08pm
happylee:
JosephSlater's question is unaswerable, at least by me. You can't look at stats and say that increases or decreases in employment rates for X group were "caused" by this or that law. It could have been education improvement or public perception of the merits or demerits of X, etc.

Also, since each and every act of employing or not employing someone is a distinctly human action brought on by multiple unquantifiable causes, one cannot say that Billy Joe didn't hire Mary Sue because she's a woman ... indeed, even if you gave Billy Joe a truth serum you would likely get a distorted answer -- afterall, his dislike of woman PLUS something (maybe her hair) is what likely motivated him because ALL employers have to make marginal utility analysis at all times, and even the most bigoted s.o.b. will hire a gurl or black fellow if the benefits so derived exceed the costs (in terms of having to be around gurls or blacks).

That said, my understanding is that if you can get away with it, you don't hire potential "problems," such as gurls, blacks, gays, fatties, druggies, uppities, etc.

If you can't get away with it (read: you are federal gov't, large corp or Jesse Jackson is camped out on your doorstep) you hire as many gurls, blacks, etc, you need to survive. And that magic number is some goofy ratio of such protected folks in the "community."

So: The answer is both.
10.19.2007 5:36pm
Elais:
I can see both arguements, yet I'm still not sure what the right path is. If the next Congress really is more GLBT-friendly, then perhaps they will be friendly enough to pass a bill protecting transgenders? That pre-supposes that ENDA can pass both the House and Senate right now and I haven't heard much about what the chances are of it passing.
10.19.2007 6:44pm
I.I (mail) (www):
Reading the summary, I wondered if this law might be broad enough to protect practitioners of other nontraditional sexual practices as well- polyamorists, BDSM types, and if the wording were especially careless possibly pedophiles and rapists... but then I read the actual text, and the bill's language specifically limits it to preferences regarding partner's gender.

(9) SEXUAL ORIENTATION.—The term ''sexual
22 orientation'' means homosexuality, heterosexuality,
23 or bisexuality.
10.19.2007 6:57pm
abu hamza:
wow it's unbelievable to me that sexual orientation could become a protected class, and now even transgendered and cross-dressers. An employee never has to let his boss know his orientation, unlike a black or woman employee obviously lets on to the boss that they 're balck or a woman, etc.

And are we going to be okay with a lawsuit every time someone on the dock or the paint line or the final assembly calls another dude a fag or a queer or says 'that's gay'?

if we know nothing else about lbgt community is that they are litigious -- all their victories practically have come from the Courts.

[deleted uncivil comments; try to be decent and not call people names]
10.19.2007 8:22pm
bittern (mail):
Dale, thanks for the link to the Barney Frank speech. I enjoyed that. Great read. Thanks.
10.19.2007 9:25pm
Grange95 (mail):

wow it's unbelievable to me that sexual orientation could become a protected class, and now even transgendered and cross-dressers. An employee never has to let his boss know his orientation, unlike a black or woman employee obviously lets on to the boss that they 're balck or a woman, etc.


The problem is that gay and lesbian employees should not be forced to hide who they are, never mentioning a partner or a boyfriend/girlfriend in casual conversation, or having a picture on their desk, etc., matters which straight workers take for granted. Also, should gay or lesbian employees live in fear of losing their jobs (and related benefits) if they happen to let slip any information that suggests they are not straight? "Don't ask, don't tell" doesn't work for the military, and its unrealistic to impose it on the workforce in general.


And are we going to be okay with a lawsuit every time someone on the dock or the paint line or the final assembly calls another dude a fag or a queer or says 'that's gay'?



This conduct is actually already covered by current sexual harassment law. An occasional insensitive remark is not going to create liability for an employer, but where inappropriate comments are a regular event and create a hostile envrionment, then yes, a lawsuit could result. I think most gay and lesbian workers can tolerate the occasional remark or joke without resorting to litigation.
10.19.2007 10:46pm
Randy R. (mail):
" How am I supposed to know that the applicant is/is not a transsexual?"

You don't. Why would you want to know? So you hire the person, and he or she does an excellent job. Then you find out, either through a newspaper article, or a rumor, that this employee is a transsexual. With ENDA, you can't fire this otherwise excellent employee just because you he is or she is now, in your view, a transsexual.

And again, why would you want to fire this person, if not for personal animous towards them.

Abu Hamza: "if we know nothing else about lbgt community is that they are litigious."

Really, Abu? Currently twenty states have their own form of ENDA (I was wrong on the number earlier). Do you have any evidence that gays are more litigious in those states?

Happylee; "Yikes, I just realized that if I were to start a private school, I'd have to hire gays and mentally ill people, even if a similarly qualified straight and healthy person was available."

Get serious. With ENDA, there is no quota that you have to fill. Plus, there is no requirement that you have to hire any mentally ill person.

Oh. I get it. All gay people are mentally ill. Oh, ha, ha, ha. Arent' you the clever one.
10.20.2007 2:12am
Cornellian (mail):
I suppose there is no arguing with someone who believes that it is morally right to compel an employment contract.

Has anyone here argued that?
10.20.2007 3:29am