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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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