The House Passes the Employment Non-Discrimination Act of 2007: A Limited Symbolic Victory for Gay and Lesbian Employees, and One that Will Likely Result in a Presidential Veto

Last week, the U.S. House of Representatives voted 235-184 to pass the Employment Non-Discrimination Act of 2007 (ENDA). The primary thrust of this bill is to ban employment discrimination on the basis of sexual orientation - something no current federal law does.

This bill, which will now be considered by the Senate, is in many ways historic. It is the culmination of a more than 30-year effort to protect gay and lesbians from employment discrimination. Yet ENDA has received criticism from both the right and the left. President Bush has issued a Statement of Administration Policy promising to veto the bill if it reaches his desk. Meanwhile, many gay and lesbian advocates have been equally critical of the bill, though for totally different reasons.

In this column, I'll discuss how ENDA would change current law, as well as the objections to the bill posed by both sides.

Current Law Affords Some Indirect Protection for Gay and Lesbian Employees

There is no current federal law prohibiting employers - or anyone else - from discriminating on the basis of sexual orientation. Title VII of the Civil Rights Act of 1964 prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. The statute does not expressly cover sexual orientation discrimination, and every court to consider the issue has ruled that "sex" does not include "sexual orientation." Thus, gays and lesbians have no direct protection against discrimination under Title VII. (Title VII is not the only federal anti-discrimination law, but the others, such as Titles IX and VI, and Section 1981, are narrower and none of them applies to sexual orientation.)

Still, despite the fact that sexual orientation discrimination is not directly prohibited by Title VII, gay and lesbian employees have been able to benefit from Title VII's protection in two ways: by bringing claims of same-sex harassment, and by bringing claims of sex-role stereotyping discrimination.

First, the Supreme Court held in Oncale v. Sundowner Services that Title VII prohibits same-sex sexual harassment, as long as the plaintiff is able to prove that the harassment occurred because of the victim's sex. (This is ostensibly a requirement in opposite-sex harassment cases, too, but courts tend to presume that opposite-sex harassment is motivated by heterosexual desire - and thus a function of the victim's sex.)

The Court in Oncale suggested that the "because of sex" requirement might be met in one of three ways: (i) with evidence of the perpetrator's homosexuality; (ii) with evidence that the perpetrator in fact targeted only members of one sex; or (iii) with evidence that the harassment took the form of gender-role policing - to punish an employee for failing to live up to traditional gender norms.

Gay men or lesbians can thus sometimes rely on Oncale to challenge conduct they experience because of their sexual orientation. A gay man who is targeted by a homosexual supervisor will have a claim for harassment, as would an "effeminate" gay man who suffers gender-policing harassment.

Second, the Supreme Court ruled in a 1989 case, Price-Waterhouse v. Hopkins, that sex-role stereotyping can be an actionable form of employment discrimination. In that case, the Court held that a woman was a victim of sex discrimination when her employer denied her partnership in an accounting firm at least in part because she was insufficiently "feminine" in the way she dressed and conducted herself. That decision gave the imprimatur to the idea that an employer's enforcing gender-role conformity is a form of illegal discrimination.

This case and reasoning can be used, at least theoretically, by "effeminate" gay men and "masculine" lesbians who are singled out for adverse treatment because they do not live up to their employers' sex-role expectations.

While these two theories provide some protection to gay and lesbian employees against adverse employment actions and circumstances, they are far from sufficient. For one thing, gays and lesbians who do conform to sex-role expectations in terms of dress, manner, or behavior cannot utilize them. Courts have been unwilling to consider having sex with someone of the same sex, alone, as sufficient defiance of gender roles to qualify for protection under these doctrines. Thus, under current law, just being gay is not enough to provide the grounds for a sex-role stereotyping claim. And even in cases where employees do fail to live up to sex-role expectations, courts sometimes rule against them anyway for fear of "bootstrapping" - that is, actually suing for what amounts to sexual orientation discrimination under the guise that one is suing under sex discrimination law.

Fortunately, states and localities have been more solicitous of the right of gays and lesbians to be free from discrimination. Many states have enacted employment discrimination laws that expressly prohibit sexual orientation discrimination, and some localities have enacted similar provisions. The protection is far from complete, however. It remains legal for employers to discriminate on the basis of sexual orientation in as many as 30 states.

What ENDA Says, and the Gap it Would Fill, If It Were Not Vetoed

ENDA's purpose is to fill the existing gap in federal anti-discrimination law for gays and lesbians. ENDA thus bans discrimination on the basis of an individual's "actual or perceived sexual orientation," which it defines to include "homosexuality, heterosexuality, or bisexuality." If this law were to be enacted (and not vetoed), then covered employers would not be allowed to take sexual orientation into account when deciding whether to hire, fire or promote someone.

ENDA borrows its language and structure from Title VII in most pertinent respects. For example, like Title VII, ENDA only applies to employers with at least fifteen employees, and protects job applicants as well as employees. Also like Title VII, ENDA applies not only to employers, but also to job-training programs, employment agencies, and unions. Other similarities include: an express prohibition of retaliation for opposing unlawful discrimination or participating in a charge of discrimination; a grant of power to the EEOC to bring claims on behalf of individuals or a class of employees; and a private right of action (that is, the right to file a lawsuit for injunctive relief or money damages) for employees who suffer actionable discrimination.

However, ENDA also departs from Title VII in two significant ways. First, it excludes disparate impact claims, which challenge discrimination that comes when the application of an ostensibly neutral rule has a disproportionate adverse impact on the protected class. A woman, for example, can challenge a height-and-weight requirement for a job as constituting sex discrimination in violation of Title VII if women are statistically less likely than men to meet the standard and the employer cannot demonstrate that the requirement is a "business necessity." In contrast, ENDA expressly limits sexual orientation claims to those styled as "disparate treatment" - that is, claims of intentional discrimination against individuals or a class of individuals on the basis of a protected characteristic.

Second, Title VII exempts religious institutions from the ban on discrimination on the basis of religion. To that explicit exemption, courts have added an exemption from sex discrimination claims for clergy positions. ENDA, on the other hand, simply exempts religious organizations completely from the Act. Thus, a church could not only refuse to hire someone because they did not subscribe to that particular religion, but also could refuse to hire a gay person, regardless of his religious affiliation, even if the refusal was motivated purely by animus.

What ENDA Doesn't Say, and the Gap it Leaves Open

Perhaps the most notable aspect of ENDA is what it leaves out: protection for transgender persons. This might not seem notable, but for the fact that a previous version of the bill included it. H.R. 2015 was introduced several months before H.R. 3685. The only meaningful difference between the two bills is that the earlier bill also banned discrimination on the basis of "gender identity."

The phrase "gender identity" was intended to protect transgender individuals from discrimination. There is no uniform definition of that term, but people generally use the phrase to describe individuals whose gender identity does not align with their anatomical sex at birth. Some individuals in this category might have a recognized psychiatric diagnosis such as "gender identity disorder" or "gender dysphoric disorder," but others simply experience a disconnect between their biological sex and their gender identity, without any diagnosed disorder. Both pre- and post-operative transsexuals, for example, would be protected by a "gender identity" discrimination ban, as might others who have no plans to alter their anatomy, but whose expressive identity is more consistent with the other sex. Most transgender persons are not homosexuals, however, so protection on the basis of "sexual orientation" would not provide them any protection.

As with sexual orientation, every federal appellate court to consider the issue has ruled that Title VII's ban on sex discrimination does not protect against discrimination on the basis of transsexualism or transgender identity. Moreover, only nine states protect transgender persons against employment discrimination.

The inclusion of "gender identity" in ENDA was a sticking point and left the bill languishing in committee. Democratic sponsors of the later measure decided to push through a narrower bill rather than lose out on the chance to pass any measure at all. Many supporters of LGBT rights were highly critical of this decision. Indeed, over 350 organizations signed a letter denouncing the substitute bill for its failure to include protection for transgender individuals.

Transgender employees do have some protection under federal, state and local law, which is not always coextensive with the existing protection for gay and lesbian employees.

Under federal law, for example, transgender employees have, at least in the last couple of years, had greater success in relying upon the Supreme Court's decision in Price-Waterhouse to make sex-role stereotyping claims. A man who is fired because he comes to work wearing a dress has an easier time showing that the employer engaged in sex-role stereotyping - with the stereotype being that "Men do not wear dresses" -- than does the gay man who is fired for being too "effeminate."

The difference is that the gay man must overcome the bootstrapping fear - that he is just using sex discrimination law to gain protection against sexual orientation discrimination. The cross-dresser, on the other hand, is probably not gay. Thus, the issue of sex discrimination is presented more clearly: He was fired because he was a man wearing a dress; a woman wearing a dress would clearly not be fired under the same circumstances. He was thus obviously fired "because of sex." Most notably in terms of caselaw, the Sixth Circuit Court of Appeals recently ruled in favor of a transgender employee in Smith v. City of Salem, a case I have written about in a previous column.

Thus, as we see from this brief review of Title VII law, if ENDA extended to "gender identity" discrimination, it would fill an existing gap in the law's protection.

ENDA's Future: A Limited One

As discussed above, President Bush's Administration has promised a veto of ENDA if the need arises. (This is par for the course on civil rights bills - a similar statement of policy was issued promising a veto of a fair pay act designed to remediate the Supreme Court's harsh ruling in Ledbetter v. Goodyear Tire & Rubber, which I have written about in a prior column.)

The Administration's objections to the bill are unwarranted. For example, the Statement of Policy expresses concern that it infringes the free exercise of religion, even though it completely exempts religious institutions, since it does not also exempt institutions that "emphasize" religious principles.

The Administration also expresses the concern that the bill purports "to give Federal statutory significance to same-sex marriage rights under State law" in conflict with the federal Defense of Marriage Act. In fact, there's not a single provision of ENDA that could possibly be construed to have this effect.

But the Administration will have the last laugh - at least for this Presidential term. There are not enough "yes" votes in the House to override a Presidential veto, so the bill will ultimately die. Still, the House's passage of the bill has symbolic value - and lays the groundwork for reintroducing it after Bush leaves office.

Perhaps in the interim, advocates will be successful in adding "gender identity" back into the bill. (Ironically, some opponents are also trying to add "gender identity," though their purpose is nefarious - to increase the likelihood that the bill will fail.) An inclusive bill is justified by the longstanding discrimination against transgender persons - and the right of all to a discrimination-free workplace. And it is certainly time for our federal anti-discrimination laws to extend their umbrella to individuals who suffer unfair treatment because of their sexual orientation.