Update on the Employment Non-Discrimination Act of 2009

March 2010

There are an estimated 7 million LGBT private employees, 200,000 LGBT people working for the federal government, 418,000 LGBT state government employees, and 585,000 LGBT local government employees. "Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment," The Williams Institute, September 2009; located here.  The Obama Administration supports legislation to end discrimination against individuals based on their sexual orientation and gender identity--from advocating for the repeal of "Don’t Ask Don’t Tell" to supporting the Employment Non-Discrimination Act of 2009 (“ENDA”). The ENDA prohibits intentional employment discrimination on the basis of actual or perceived sexual orientation or gender identity by covered entities, which include employers, employment agencies, and labor organizations. "Sexual orientation" is defined as "homosexuality, heterosexuality or bisexuality;" "gender identity" is 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."  It was not until 2007 that the ENDA included gender identity, in addition to sexual orientation, in its prohibition against discrimination. The ENDA’s coverage of intentional discrimination mirrors the coverage available to individuals under Title VII, except for coverage for disparate impact claims, which ENDA does not cover.  Both the U.S. Department of Justice (“DOJ”) and the Equal Employment Opportunity Commission (“EEOC”) would share responsibility for enforcing the ENDA.

The ENDA has stalled in Congress since it was first introduced in 1994.  The current version of the bill was originally introduced in the summer of 2009 by U.S. Rep. Barney Frank (D-MA) (H.R. 2981, H.R. 3017, S. 1584). The House Education and Labor Committee held a full committee hearing on the bill in September 2009, and the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on ENDA in November 2009.  The bills are still pending.

Protection Offered By Pending ENDA of 2009

While some transgender plaintiffs have been successful in asserting claims for gender discrimination based upon non-conformity to certain gender stereotypes, ENDA supporters assert that the new law will provide a more defined route for claiming employment discrimination.  The ENDA applies to employers with 15 or more employees, for each working day in at least 20 weeks in the current or preceding calendar year.  It excludes bona fide membership clubs, religious organizations, and the armed forces.  It does not affect "Don't Ask, Don't Tell." The ENDA prohibits employers from using an individual's sexual orientation and gender identity, actual or perceived, in all aspects of employment, including hiring, termination, promotion, compensation, and terms, conditions, or privileges of employment.

Under the proposed law, association discrimination is also prohibited.  Therefore, an employer could not take an adverse employment action based on the actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated.  Retaliation is also unlawful. While disparate treatment claims are actionable, disparate impact claims are not, which is a significant departure from Title VII.  Further, employers are expressly prohibited from using preferential treatment and quotas based on actual or perceived sexual orientation or gender identity.  ENDA does not require that employers provide benefits to same-sex partners, and it does not apply retroactively.  ENDA does not allow the EEOC to collect statistics on sexual orientation or gender identity or compel employers to collect such statistics.

ENDA also clarifies what actions employers may take in instituting dress code and grooming policies.  Employers may still require employees to follow reasonable dress or grooming standards as long as persons who have undergone gender transition prior to the time of employment, or persons who have notified employers that they have undergone or are currently undergoing gender transition, are permitted to adhere to the same dress code and grooming standard for the gender the employee has transitioned to, or is transitioning to. 

CurrentState and Federal Coverage of Sexual Orientation and Gender Identity Claims

Currently, 21 states, including Connecticut, Nevada, New Hampshire, and Maryland, prohibit employment discrimination based on sexual orientation.  Another 12 states, including Iowa, New Mexico, Oregon, Colorado, Minnesota, Washington, Rhode Island, Vermont, as well as the District of Columbia, prohibit discrimination based on sexual orientation and gender identity. 

Indiana does not recognize a cause of action for employment discrimination based upon sexual orientation or gender identity. Ind. Code § 22-9-1 et seq. The Indiana Civil Rights Law provides protection against discrimination based on race, religion, color, sex, disability, national origin or ancestry.  Id.

Marion County and the City of Bloomington, however, include sexual orientation and gender identity among a list of classes to be protected from discrimination in employment.  The following Indiana counties and cities prohibit sexual orientation discrimination in private and public employment, but do not prohibit gender identity discrimination:  Monroe County and Tippecanoe County, including Lafayette and West Lafayette, and the cities of Fort Wayne,  Michigan City, and Terre Haute. 

With the patchwork of state laws prohibiting employment discrimination based on sexual orientation and gender discrimination, the ENDA would explicitly provide an employment discrimination cause of action to lesbian, gay, bisexual, and transgender individuals.     

The Seventh Circuit's treatment of gender discrimination claims brought by transsexual individuals is representative of several other circuits that have addressed the issue.  The court held in Ulane v. E. Airlines, Inc., that Title VII's prohibition on sex discrimination means only that it is "unlawful to discriminate against women because they are women and men because they are men."  742 F.2d 1081, 1086 (7th Cir. 1984).  Where a plaintiff can only show he or she was discriminated against as a transsexual, and not as a man or a woman, Title VII provides no protection.  Other circuits holding that transsexuals are not a protected class under Title VII include the Eighth, Ninth, and Tenth Circuits.  See Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749-50 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-62 (9th Cir. 1977); and Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007). 

LGBT individuals, similar to heterosexual individuals, may still bring "gender stereotyping" claims under Title VII as a basis for arguing gender discrimination claims if they can present sufficient evidence to prove that harassment or discrimination occurred "because of sex" and not solely because of sexual orientation.  See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (holding that discrimination against an employee for her failure to conform to socially defined gender norms was illegal under Title VII).  Successful claims of gender discrimination have generally proven elusive for lesbian, gay, and bisexual ("LGB") plaintiffs because courts find that these plaintiffs suffered discrimination because of their sexual orientation, not because of their gender.  Therefore, transgender plaintiffs have seen a bit more success than LGB plaintiffs under Title VII.  

Following Price Waterhouse, courts have been more willing to grant transgender individuals protection under Title VII because of their non-conformance with socially defined gender roles. Tanya A. De Vos, "Tenth Annual Review of Gender and Sexuality Law: Employment Law Chapter: Sexuality and Transgender Issues in Employment Law," 10 Geo. J. Gender & L. 599, 606 (2009); See also Spearman v. Ford Motor Co., 213 F.3d 1080, 1085 (7th Cir. 2000) (noting that "sex stereotyping may constitute evidence of sex discrimination"); and Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (noting that Title VII prohibits "discrimination because one fails to act in the way expected of a man or woman).

In Schroer v. Billington, the U.S. District Court in the District of Columbia, in granting relief to a transgender plaintiff who sued for discrimination in violation of Title VII because of sex, held that the findings in Ulane, Holloway, and Etsitty are "no longer a tenable approach to statutory construction."  Schroer, 577 F. Supp. 2d 293, 307 (D.D.C. 2008).  The District Court held that the "Library's refusal to hire Schroer after being advised that she planned to change her anatomical sex by undergoing sex reassignment surgery was literally discrimination 'because of … sex.'"  Id. at 308.  The court further stated:

"In refusing to hire Schroer because her appearance and background did not comport    with the decisionmaker's sex stereotypes about how men and women should act and appear, and in response to Schroer's decision to transition, legally, culturally, and physically, from male to female, the Library of Congress violated Title VII's prohibition on sex discrimination." Id.

Opposing Viewpoints

Supporters of ENDA maintain it is the logical addition to other federal civil rights legislation following the Civil Rights Act of 1964, including the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act of 1990.  Those supporters also point to a civil rights law that was recently passed by Congress. The Hate Crimes Prevention Act ("HCPA") (P.L. 111-84), which President Obama signed into law on October 28, 2009, gives the Department of Justice the power to investigate and prosecute bias-motivated violence by providing the DOJ with jurisdiction over crimes of violence where the perpetrator has selected a victim because of the person's actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.

ENDA opponents argue that it will impose additional burdens upon employers, including religious organizations such as those comprising the National Religious Broadcasters, and that there will be an influx of frivolous employment discrimination lawsuits filed.  These opponents argued before the Senate HELP committee that the following uncertainties were present in the current text of the ENDA: whether Title VII and ENDA will provide duplicate causes of action for sex stereotyping; how "disparate impact" claims will be defined under ENDA; whether ENDA was intended to provide additional attorney's fees above those available under Title VII; when an employer's affirmative obligations for providing shared facilities and applying dress and grooming codes are triggered and whether "shared facilities" include restrooms; and whether employers are required to modify existing facilities.  

Practical Considerations

Should this law pass, employers should not necessarily anticipate a significant increase in the number of employment discrimination charges filed.  States that have adopted laws prohibiting discrimination based on sexual orientation and/or gender identity have only shown slight increases in these types of discrimination charges.  For instance, Illinois Attorney General Lisa Madigan reported during her November 5, 2009 testimony before the Senate HELP committee that since Illinois adopted its sexual orientation and gender identity inclusive anti-discrimination policy in 2006, only 2.9 percent of the total employment discrimination charges filed were based on sexual orientation or gender identity.  This is less than the 10 percent of sexual orientation or gender identity employment discrimination charges the Illinois Department of Human Rights expected to be filed upon enactment of the new policy.   If signed into law, employers should expect to revise their non-discrimination policies and their training policies to comply with the provisions of ENDA. Finally, the EEOC will likely issue regulations to assist employers with compliance.

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