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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 riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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