Will ENDA End Sexual Orientation Discrimination?

Today the House Labor Committee passed H.R.3685, the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination by private employers based on “actual or perceived sexual orientation.”

Dale Carpenter has two interesting posts on the Volokh conspiracy (here and here) discussing the principle vs. pragmatism debate over this bill among those who support gay rights: Lambda Legal and other gay activists oppose the bill because it does not also include protection for “gender identity” or transgendered people; Rep. Barney Frank and others, noting that a more ambitious bill wouldn’t pass, defend their more pragmatic, limited approach.

I think the bill, in either form, raises other fascinating questions. First, here is the operative text from H.R. 3685 (linked above):

SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED.

(a) EMPLOYER PRACTICES.— It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the indi vidual, because of such individual’s actual or perceived sexual orientation; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation.

This definition of unlawful employment practices seems clearly to require that applicants and employees be treated without regard to their actual or perceived sexual orientation. Fine.

But wait: haven’t we seen this language, or language very much like it, before? Indeed we have. Here is the operative language, for one example, from Title VI of the Civil Rights Act of 1964, which I’ve quoted and discussed too many times to cite (a few: here, here, here, here):

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance

Now, for reasons that do not do the courts proud, this clear language has been ”construed” to permit precisely what it purported to prohibit, treating some people better, and others worse, because of their race or ethnicity.

Thus it would be irresponsible not to wonder whether ENDA will in fact end discrimination based on sexual orientation or, given the apparently unrestrained ability of courts to “construe,” actually wind up authorizing it in the manner of Title VI.

As it happens the drafters of H.R. 3685 were obviously aware, or made aware, of this concern. Here is their attempt to calm that concern:

(f) NO PREFERENTIAL TREATMENT OR QUOTAS. —

Nothing in this Act shall be construed or interpreted to require or permit —

(1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation in any community, State, section, or other area, or in the available work force in any community, State, section, or other area; or

(2) the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation.

(g) DISPARATE IMPACT. — Only disparate treatment claims may be brought under this Act.

Sounds good, but this attempt to bar preferential treatment also raises questions. First, does it really bar all preferential treatment by employers on the basis of sexual orientation, or only preferential treatment that is employed to correct “an imbalance”? What about preferential treatment undertaken for other reasons? But, you ask, wouldn’t that sort of discrimination be covered by the provisions, quoted above, defining unlawful employment practices?

Perhaps, but if only to the same extent Title VI prohibited such practices that would not be very much.

Second, assuming this provision really does prohibit preferential treatment, wouldn’t that mean that even sexual orientation lacks the “protection” awarded to race and ethnicity (assuming, of course, that allowing preferential treatment can be viewed as protection)?

Third, and perhaps most interesting, if this provision really does accurately state the current understanding of Congress (and is signed into law by the president) about the nature of discrimination that is prohibited, and that that prohibition extends to preferential treatment of people in protected classes, perhaps the courts could be persuaded to unconstrue their construals of Title VI et. al. that are inconsistent with this new consensus.

Say What? (8)

  1. James E. October 19, 2007 at 1:21 pm | | Reply

    So I guess we have just cancelled basically every office party in the nation celebrating one of the staff getting engaged or married.

    At least this ought to help productivity!

  2. Chetly Zarko October 19, 2007 at 8:21 pm | | Reply

    John,

    What would the left do if a bill was proposed that rewrote ALL of the federal civil rights laws to include a full-fledged prohibition against discrimination on the basis of sexual orientation (broadly defined as Barney Frank might choose) but in exchange ALL categories had an “anti-preference” clause added that was as clear as Prop 209?

    Would the LGBT lobby want that protection up front? or would they defer to the minority/gender lobby? Would it split them in any serious way? Alas, it wouldn’t matter because it isn’t going to happen. But an interesting thought experiment.

  3. John Rosenberg October 19, 2007 at 10:17 pm | | Reply

    Chet – Very interesting. Of course, at the moment the LGBT lobby is split over ENDA, with Lambda Legal and friends preferring no protection to a bill that protect the LGBs but not the Ts.

    I’ve also long favored a similar thought experiment: would preferentialists prefer the repeal of all civil rights laws if that were necessary (which I think it is) to make race/ethnic preferences legal?

  4. Curtis Crawford October 22, 2007 at 12:36 pm | | Reply

    John writes: “But wait: haven’t we seen this language, or language very much like it, before? Indeed we have.” He then cites Title VI of the 1964 Civil Rights Act.

    ENDA is even closer to the language of Sec. 703 in Title VII of the same Act:

    “(a) It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate AGAINST [my emphasis] any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;”

    Justice Brennan, for the Court in Weber, pointed to “against,” arguing that it doesn’t bar preference. When confronted with the Act’s assurance that “Nothing contained in this title shall be interpreted to REQUIRE [my emphasis] any employer” to grant race-based preferences, Brennan held they were nevertheless PERMITTED.

    ENDA at least removes that loophole: “(f) NO PREFERENTIAL TREATMENT OR QUOTAS. — Nothing in this Act shall be construed or interpreted to require OR PERMIT [my emphasis] …”

  5. Mark Seecof November 10, 2007 at 12:44 am | | Reply

    November 8– the House of Representatives approved the ENDA bill. Dale Carpenter exulted over at the Volokh Conspiracy, but he was discomfited by comments which pointed out potential negative effects of passing ENDA. After a while he simply cut off further comments.

    Downplaying the likelihood of quota-based ENDA enforcement, Carpenter repeatedly emphasized that Sec. 9 of the bill would forbid EEOC to collect or require the collection of statistics on applicants’ or employees’ sexual orientations. However, Carpenter skated past the fact that ENDA would permit (and virtually require) the DOJ to demand such information about employees of Federal, State, and local governments or their contractors. According to Sec. 10 of the bill, DOJ is supposed to enforce ENDA in the same way as Title VII. Since DOJ requires gov’t agencies to collect race data for Title VII purposes, DOJ would likely require agencies to collect sexual-orientation data in the same fashion.

    So if ENDA becomes law, people applying for government jobs would almost certainly be required to state their sexual preferences (to the government!) as a condition of employment–and on application forms which threaten perjury prosecution for misstatements.

    Of course, even if Sec. 9 limited EEOC’s appetite for sexual-orientation data, it would not prevent ENDA plaintiffs from issuing subpoenas for such data, nor courts from enforcing them.

    Indeed, if ENDA were enacted, many employers would ask employees to state their sexual orientations to prepare defenses to “statistical” lawsuits. Though the ENDA bill contains a clause 4(g) restricting “disparate impact” lawsuits, it does not forbid “pattern and practice” lawsuits, which the Supreme Court ruled (for Title VII, and therefore for ENDA by its Sec. 10(b)) in Hazelwood School District v. United States, 433 U.S. 299 (1977) and Teamsters 431 U.S. 324 (1977) could proceed on the basis of statistics and “examples” of disparate treatment.

    ENDA repeats Title VII’s no-quota language, but that of course is a dead letter, and since the ENDA bill says it should be enforced exactly like Title VII, the most likely result is that private employers (and educators) would adopt ENDA quotas as a prophylactic against ENDA lawsuits, and government agencies and contractors would be forced to adopt quotas by the DOJ.

  6. [...] colorblindness is racist, why isn’t sexual-identiy blindness homophobic? In another example, Will ENDA End Sexual Orientation Discrimination?, I referred to a provision of  the then-pending Employment Non-Discrimination Act that purported [...]

  7. [...] would permit, encourage, or even ultimately require preferential treatment of gays, but see here, here, here, here, and here for representative posts. Posted in And another [...]

  8. [...] order that would impose by White House fiat the Employment Non-Discrimination Act (discussed here and here), which serial Congresses have refused to [...]

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