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    October 03, 2007

    New ENDA weaker than the old?

    Posted by: Chris

    Lambdalegal As usual, Lambda Legal has managed to add substance to a messy controversy that has mostly featured petty grandstanding. I don't always agree with Lambda, but I appreciate how they stick to substance and usually contribute something real to the debate.

    That's what they've done here on the debate over whether to remove transgender protections from the Employment Non-Discrimination Act. While the National Gay & Lesbian Task Force and the Human Rights Campaign are posturing, credit Lambda for taking the time to analyze the substance of ENDA, trans-inclusive and gay-exclusive.

    The result of that analysis may have been a bit pre-determined by Lambda's position on ENDA, which mirrors that of the Task Force and other groups that demand transgender inclusion, but Lambda actually took the time to compare the legislation and came to interesting conclusions:

    The recent version is not simply the old version with the transgender protections stripped out — but rather has modified the old version in several additional and troubling ways.

    In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians and gay men who may not conform to their employer's idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.

    This version of ENDA states without qualification that refusal by employers to extend health insurance benefits to the domestic partners of their employees that are provided only to married couples cannot be considered sexual orientation discrimination. The old version at least provided that states and local governments could require that employees be provided domestic partner health insurance when such benefits are provided to spouses.

    In the previous version of ENDA the religious exemptions had some limitations. The new version has a blanket exemption under which, for example, hospitals or universities run by faith-based groups can fire or refuse to hire people they think might be gay or lesbian.

    The last two points raised by Lambda Legal seem valid ones to me. Why allow federal law to override state and local laws that require employers to treat domestic partners the same as married couples? It seems counterproductive unless (again) it's politically necessary for passage.

    I'm less concerned about the breadth of the religious exception. Anyone who goes to work for a company controlled by a religious group knows going in that there is a religious purpose behind the enterprise. Even so, it does seem worthwhile to revise ENDA so that again only employers or positions whose primarily purpose is religious are excluded.

    The gist of the Lambda Legal analysis, however, is pinned on gay employees needing "gender identity" as a protected category because an employer charged with anti-gay bias can simply claim the real problem was the employee's failure to conform to gender norms Indeed, the term "gender identity" is described in the trans-inclusive ENDA as "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."

    But as regular readers of this blog know, Title VII already protects employees of all sexual orientations and gender identities from discrimination because they don't live up to their employer's gender norms or stereotypes. Transgender employees have already taken advantage of this interpretation of existing federal law, but gay employees have been hit with the fact that federal law doesn't cover sexual orientation.  So once again, it is gay employees, not transgender employees, who need ENDA more.

    So while I don't buy Lambda's overall point that a trans-inclusive ENDA is necessary to protect gay workers, I do think Barney Frank and others should pay heed to Lambda's other concerns.

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    1. Lambda's ENDA: from The Volokh Conspiracy on Oct 18, 2007 5:47:49 PM

      Today, on a 27-21 vote, the House Labor Committee approved the Employment Non-Discrimination Act (ENDA), [Read More]

    Comments

    1. Rachel Owens on Oct 3, 2007 2:10:48 AM:

      You keep trumpeting Title VII over and over. I have only heard mention of ONE case in ONE federal appeals court that has taken Title VII to mean this. I have never heard of it being used ever again outside of that one case.

      I think you put too much faith in that one court case to change the entire country's legal system.

    1. North Dallas Thirty on Oct 3, 2007 3:28:16 AM:

      "Why allow federal law to override state and local laws that require employers to treat domestic partners the same as married couples?"

      Several reasons.

      First, "domestic partner" does not always mean "same sex". California law, for example, allows opposite-sex couples to register as domestic partners provided they are over the age threshold of 62.

      Second, in order to comply with multiple state laws, most employee benefits plans do not require legal registration for you to claim a person as a domestic partner.

      Third, states and local governments are not allowed to mandate employer-provided benefits of all employers; the federal ERISA (Employee Retirement and Income Security Act) pre-empts that.

      Fourth, state and local governments may already mandate DP benefits if they like of companies who have contracts with them without running afoul of Federal law.

    1. adamblast on Oct 3, 2007 11:31:13 AM:

      Domestic partner benefits are a messy nightmare, and were I a small businessman I would dread having to implement them and worry about their cost. It's a shame they're needed because Americans won't let us marry.

      Refusal to grant DP benefits *isn't* sexual orientation discrimination--it is based on a desire to hold back on health care cost increases, and affects DPs of either orientation.

      I suppose I'm less mad about the bill being delayed now that some of its other flaws have come into relief. Contrary to Chris' point on the religious exemption, I don't think "knowing ahead of time" is any defense against religious bigotry in employment. I fall back on the racial example as parallel. Religion has a perfect right to deem some skin colors inferior--but that gives them no right to deny them equal employment in our society.

    1. Kat on Oct 3, 2007 11:47:01 AM:

      "Title VII already protects employees of all sexual orientations and gender identities from discrimination because they don't live up to their employer's gender norms or stereotypes. "

      LIAR!!!!!!!!

      http://lawprofessors.typepad.com/lgbtlaw/2007/09/10th-circuit-de.html

    1. anon on Oct 3, 2007 12:41:34 PM:

      Title VII does NOT protect those who differ from gender norms. Ever heard of the Harrah's casino case? The NINTH CIRCUIT, by far the most liberal circuit in the country, held that Title VII does not prevent an employer from firing a masculine woman who refused to wear makeup. http://writ.news.findlaw.com/colb/20050111.html C'mon Chris, quit being intellectually dishonest. Or, at least CHANGE YOUR MIND and recognize that our friends at Lambda Legal are much more experienced LGBT civil rights attorneys than yourself. When's the last time you practiced law???

    1. North Dallas Thirty on Oct 3, 2007 1:01:49 PM:

      Try again, anon.

      What the Ninth Circuit did is to simply apply uniform rules; that is, as part of your job, if it is company policy that you wear a specific uniform or dress in a specific fashion, your failure to comply with that directive is acceptable grounds for termination.

      To put this in perspective, if a company has a requirement that male employees wear trousers, the argument made by the plaintiff in this case is that men should not be disciplined for failure to follow said policy because doing so reinforces "traditional gender roles". The Ninth Circuit very wisely pointed out that it is not in the business of regulating employee dress or abolishing gender norms; it is in the business of ensuring that employees who are specifically harassed for their appearance, versus their noncompliance with a general and established appearance policy that applies to everyone in the company, are protected.

      And as to Kat's case, same problem; the courts are not going to say that you can arbitrarily allow men to use womens' bathrooms and vice versa.

    1. Citizen Crain on Oct 3, 2007 1:10:36 PM:

      NDT, you make a very interesting point about ERISA and differing state laws on benefits. I think that the more states differ on the types of legal recognition offered to gay couples, the more this is going to become an issue for companies with multi-state offices. But my off-the-cuff reaction is that a federal solution makes sense and unless it was holding ENDA back, why not push for it.

      Adamblast, having run a small business that offered DP benefits, I can tell you that they're actually not a hassle. Most insurance carriers offer coverage now as a standard feature and take care of all the paperwork. I agree DP is a hold-your-nose temporary solution until we can marry, but the benefits are critical to many. I don't buy refusing DP benefits as a financial matter. If a business offers added benefits for straight couples, it ought to do the same for gay couples. Refusing to do so is discrimination.

      Rachel, Kat and anon: I think you're confusing two issues here. The first is whether Title VII protects transsexuals and cross-dressers against discrimination against them because they are transsexuals or cross-dressers. It does not and a trans-inclusive ENDA would address that.

      But the U.S. Supreme Court has made clear that all workers, and that include transgendered employees, are protected against discrimination on the basis of their failure to live up to their employer's gender norms or stereotypes. And that type of protection has been used successfully by transgender plaintiffs but never so by gay plaintiffs.

    1. anon on Oct 4, 2007 12:43:23 AM:

      North Dallas,

      You're right about what the 9th Circuit did in Harrah's, however my point was that employers actually should NOT be in the business of giving the pink slip to a masculine woman or a feminine man. Until a g.i.-inclusive ENDA is passed, the lesbian who doesn't want to wear makeup can't keep her job. I'm not saying employers should not be allowed to require employee uniforms -- like flight attendants, for example, but those requirements should be free of sex stereotypes, REGARDLESS of whether or not the requirements are neutral under Title VII. The 9th Circuit was right insofar as this type of gender discrimination in the workplace is legal under Title VII ( b/c they found it had a neutral affect on men and women).

    1. North Dallas Thirty on Oct 4, 2007 1:29:05 PM:

      "I'm not saying employers should not be allowed to require employee uniforms -- like flight attendants, for example, but those requirements should be free of sex stereotypes, REGARDLESS of whether or not the requirements are neutral under Title VII."

      So whenever a lesbian doesn't want to follow an appearance policy, she should be allowed to scream "sex stereotyping" and violate it at will, with the company unable to do anything about it.


      "But my off-the-cuff reaction is that a federal solution makes sense and unless it was holding ENDA back, why not push for it."

      The most annoying thing relative to DP benefits, Chris, is the fact that you are taxed on your company's contribution to them (imputed income) and that your company is taxed on that imputed income (via the payroll tax). It's not the premium cost that is a huge killer with DP benefits; it's the additional taxes on both.

      Quite honestly, that is a ten-second update to the IRS Code; simply amend it to allow the exemption of company contributions from taxation to be extended to one non-dependent adult beneficiary of the employee's designation, in addition to any dependents. This would allow coverage of spouses and domestic partners; it would also allow employees to cover people who ordinarily wouldn't be eligible as spouses or domestic partners, i.e. an elderly parent or sibling, as well.

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