ILNews

DTCI: An updated to Employment Non-discriminaiton Act

Amy S. , Takeia R. Johnson
March 3, 2010
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. what a wonderful world we are living, i still doubt this spell caster how he did it!!! i am Shechan Caroline am from Los Angeles I am so happy to let the whole word know how this powerful spell caster saved my marriage.Everything was going down the drain as my husband can not stop cheating on me with other women. It became used to always heating on me. I tried to make him stop, but I couldn't help the situation, the more I tried, the harder it becomes. At times we will fight and go apart for some months and we will come back again just because of our kids. One day a friend told me about this spell caster who helped her too, his name is Dr.oku, she said he uses white magic spells to solve spiritual problems. I decided to give it a try, I contacted him and he told me it will take just 2 to 3 days and I will see great changes in my husband. He actually cast a spell, believe me after 2 to 3 days of the spell, my husband was confessing different names of woman he has slept with. He begged for forgiveness and never to try it again. From that day till now, my mind is at rest. My husband dislike every other women on earth except me. And am so happy to have him for myself alone.The spell caster’s contact is okutemple@gmail.com or add him on whasapp +2347053113465?

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

  4. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

ADVERTISEMENT