Strong ENDA Needed to Protect LGBT People
ACSBlog is on hiatus until January 2. Please enjoy this Guest Blog post from earlier this year.
by Kate Kendell Esq., Executive Director of National Center for Lesbian Rights
I am concerned that the deletion of express protection against discrimination based on gender identity from Employment Non-discrimination Act (ENDA) would result in a law that does not fully protect lesbians, gay men, and bisexual people in addition to leaving transgender people unprotected. We are joined in this view by all of the other principal LGBT legal organizations, including the ACLU LGBT Project, Gay & Lesbian Advocates & Defenders, Lambda Legal and the Transgender Law Center. Collectively, our organizations have litigated more cases on behalf of lesbian, gay, bisexual, and transgender people in the United States than anyone else, including handling scores of employment discrimination cases over the past three decades.
Many have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect the LGBT community’s basic rights. While the first version of ENDA introduced this year would have protected the LGBT community, the version introduced last week would not.
I see three significant problems with this weakened version of the bill:
- Protections for transgender people were removed.
- Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
- The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.
The removal of protection for transgender people, in addition to allowing continued discrimination against transgender people, would open the door to the court's weakening of statutory protections under ENDA for all members of the LGBT community. Over the past two decades, many federal courts—including the U.S. Supreme Court—have adopted astoundingly narrow constructions of anti-discrimination statutes. We would be foolish—and irresponsible—to ignore this body of case law as we are attempting to pass an effective statute that will protect members of the LGBT community from discrimination.
For example, although statutes prevent employers from discriminating based on national origin, courts have nevertheless interpreted those statutes to permit employers to discriminate against workers who speak with an accent associated with a particular country or region. Similarly, courts have interpreted race discrimination statutes narrowly to permit employers to discriminate against workers who wear hairstyles (such as braided hair) associated with a particular race. The basis for these decisions is that not all persons from other countries speak with an accent and that not all persons of a particular race wear a particular hairstyle. While we strongly disagree with the reasoning in these decisions, it, unfortunately, does not take a stretch of imagination to envision a court holding that a statute prohibiting only sexual orientation discrimination does not protect a butch lesbian or a feminine gay man because not all lesbians and gay men are gender non-conforming.
The U.S. Supreme Court itself adopted this kind of narrow analysis when it infamously held that discrimination based on pregnancy is not sex discrimination—since not all women are pregnant. Geduldig v. Aiello, 417 U.S. 484 (1974).
The inclusion of “actual or perceived sexual orientation” does not guarantee against an equally narrow interpretation of ENDA. For example, the Americans with Disabilities Act expressly protects those who are “regarded as” having a disability. Nonetheless, federal courts have construed this provision in an incredibly narrow way—namely, to exclude individuals who do not have a disability but are discriminated against because an employer believes they do. As a result, the “regarded as” provision in the ADA has largely been stripped of any real significance. There is little reason for confidence that federal courts will adopt a broad view of “perceived sexual orientation” to embrace gender non-conformity. Indeed, we fear that the opposite is much more likely.
This is particularly true since the question is not whether to include “gender identity” in the bill in the first place, but whether to remove it. As litigators are well aware, when Congress alters the language of a bill to make it more narrow, courts generally consider those alterations to be significant. Inevitably, some courts will seize upon the removal of “gender identity” as a reason to construe the new bill to exclude protections for those who are, or are perceived as being, gender non-conforming.
Unfortunately, Title VII—which prohibits sex discrimination by employers—cannot be guaranteed to fill the gaps left by the removal of an express prohibition on discrimination based on gender identity from ENDA. Despite decades of effort, we have not made nearly the progress we should have in getting federal courts to construe Title VII to prohibit discrimination based on an individual’s nonconformity to gender stereotypes, particularly outside of the context of harassment. While we will continue to press on this front, banking on Title VII to fill the gaps in the new ENDA is premature.
As Lambda Legal has pointed out, one recent example is Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005). In Dawson, the plaintiff had a weak factual case, but what is significant is that the Dawson court expressed skepticism that Title VII necessarily prohibits discrimination based on gender non-conformity. The court stated that whether such discrimination is actionable under Title VII is still an open question in the Second Circuit.
A few commentators criticizing Lambda Legal’s analysis have demanded a “list” of state court decisions that have narrowly construed sexual orientation-only laws. Such a demand shows a fundamental misunderstanding of employment discrimination litigation. Only eight states have laws that prohibit only sexual orientation without also including gender identity, and there are very few published LGBT employment discrimination decisions in those states. We know from our own firsthand experience that LGB employees who have experienced discrimination that might be characterized as based on gender nonconformity have a very difficult time finding a lawyer to represent them in those states because of the uncertainty as to whether the law prohibits this type of discrimination.
Moreover, even if an LGBT employee finds a lawyer to file such a case, most employment discrimination cases settle and never result in an appeal that establishes precedent. Experienced lawyers thus have to read the case law not just for what it expressly states, but for what it shows is likely to happen in other litigation. What has happened in the federal courts under other anti-discrimination laws shows why we, Lambda Legal, the ACLU, GLAD, and the Transgender Law Center are deeply concerned about the inadequacy of a sexual orientation-only bill.
The blanket exemption for religious employers in the new version of ENDA is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections. Every federal civil rights law has a limited exemption for religious organizations. The 1964 Civil Rights Act says it is not illegal religious discrimination for a religious organization to give preferences to members of its own church. The Americans With Disabilities Act (the ADA) has a similar exemption, and also allows a religious organization to require employees to comply with its religious tenets.
The first version of ENDA this year had exemptions for churches and for jobs outside the church for ministers and religious teachers and administrators. It also allowed religious groups to require people who work for them in other jobs to comply with all the major tenets of the religion. But this first version of ENDA did not allow employers to refuse to hire someone just because of a religious objection to LGBT people. If employers chose to require adherence to religious tenets, their policy had to require compliance with all major tenets including those, for example, about marriage and divorce. Under this earlier version of ENDA, if employers such as hospitals and universities did not require adherence to all of their major religious tenets, they could not invoke the religious exemption only to single out and discriminate against LGBT people.
The newest version exempts all religious groups from the law completely. It is not a broad exemption; it is a total exemption. It would give religiously affiliated hospitals, social service agencies, shelters and universities complete freedom to discriminate against LGBT people.
Sincerely held religious belief has been used to justify segregation, race discrimination, sex discrimination, and discrimination against people with disabilities, not just in the 19th century, but within the last 25 years. And while the separation of church and state may require some accommodation of religious bodies, what is new about this latest version of ENDA and unacceptable is the idea that civil rights protections should completely give way to religious organizations. What people choose to believe, and how they choose to worship are their business, and the Constitution rightly keeps the government out of it. But when an employer uses religion to justify taking away a job from an orderly, custodian, secretary, social worker or doctor, the government has an overriding interest in preserving equal opportunity.
LGBT legal groups are right to oppose any version of ENDA that does not include protections against discrimination based on gender identity. For all practical purposes, we have one chance to pass a law that will effectively and adequately protect our community. Omitting transgender people from that law would be unprincipled and unfair. It would also be irrational, since doing so will also leave many lesbian, gay, and bisexual people without the secure protection they need against discrimination based on gender nonconformity. We can do much better, and we must.