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.