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DTCI: An updated to Employment Non-discriminaiton Act

Amy S. , Takeia R. Johnson
March 3, 2010
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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 nonconformity to certain gender stereotypes, ENDA supporters assert that the new law will provide a more defined route for claiming employment discrimination. 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." 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 samesex 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 before 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.

Current State 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 Monroe County, 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: Tippecanoe County, and the cities of Bloomington, Fort Wayne, Lafayette, Michigan City, Terre Haute, West Lafayette, and South Bend.

With the patchwork of state laws prohibiting employment discrimination based on sexual orientation and gender discrimination, 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 show only that 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 nonconformance 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 "[l]ibrary'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 of 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 biasmotivated 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, gen- der 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 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 attorneys' 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 shown only 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 antidiscrimination 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 ten 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 nondiscrimination 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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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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