Posted by Dale Carpenter:
Pragmatism, principle, and law in ENDA:
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191697324
There is no federal law prohibiting discrimination based on sexual
orientation in private employment, though such protection was first
introduced by Bella Abzug in 1974. Courts have consistently read Title
VII�s ban on sex discrimination to leave out protection from anti-gay
discrimination. Currently, in 31 states, [1]including all of the South
and most of the Midwest and West, there is no statewide protection for
gays in private employment.
A controversy has been brewing among gay-rights advocates over how
expansive to make a new federal law, the Employment Non-Discrimination
Act (ENDA), which would protect gay people from private employment
discrimination. On one side of the controversy are activists,
including [2]a large number of civil-rights and gay organizations, who
want the new law to protect both gay and transgendered employees from
discrimination. They fear that if trans protection is not included in
ENDA, Congress will not act to protect transgendered people anytime in
the near future. They argue this is a matter of principle: gay people
should wait until �everybody� in the �GLBT community� can get
protection � however long that might take. They vow to actively oppose
any bill that does not include both groups.
On the other side are various commentators (see, for example, [3]here
and [4]here and [5]here and [6]here) and [7]Rep. Barney Frank (D-MA),
who claim that ENDA cannot pass Congress if protection for
transgendered employees is included. They support a new version of the
bill that would protect gay employees, but leave protection for the
transgendered for another day. They argue this is a matter of
pragmatism: civil rights legislation proceeds incrementally, through a
process of education and adjustment, and has never protected
�everybody� and everything all at once.
Enter Lambda Legal, the national legal outfit representing gay people
in everything from immigration to marriage to employment. Lambda
claims that, aside from the cruelty of leaving transgendered people
out of ENDA, there is self-interest for gay people at stake in
including protection for �gender identity� as well as �sexual
orientation� in the bill. [8]In an open letter to Frank, Lambda
argues:
We have no doubt that, were the weaker version of ENDA to pass,
some employers will claim they have nothing against lesbians, gay
men and bisexuals per se, but that they do not want men whom they
see as unmanly or women who they believe are not feminine enough,
and loophole would be invoked against almost any lesbian, gay man
or bisexual who sought protection against discrimination under
ENDA.
That is, according to Lambda, an employer might successfully argue
that it did not object to gay people as such, but it didn't want any
employee (gay or straight) who appeared to the employer to be gender
nonconforming. So, under this hypothesis, an employer could get around
the gay-only version of ENDA by claiming that it fired a lesbian for
being �too mannish� rather than lesbian. Or it could claim that it
fired a gay man for his effeminacy rather than his homosexuality.
As a factual matter, it would be passing strange to see such a case,
since almost every instance of discrimination for gender nonconformity
is accompanied by direct and explicit evidence of anti-gay
discrimination (e.g., calling an effeminate man a "fag"). It would not
be hard for a court or jury, and certainly would not be hard for
Lambda's skilled lawyers, to pierce the pretext that the employer was
not really engaged in anti-gay discrimination and thus violating the
"weak" version of ENDA.
Indeed, we now have decades of experience with state laws that protect
gay people from discrimination based on sexual orientation but not
gender identity. If the inadequacy of sexual-orientation protections
were a real problem -- as opposed to a hypothetical or theoretical one
-- we should expect to see many such cases. But neither Lambda nor any
other organization has yet produced a single instance in which an
employer successfully argued around a gay-only employment protection
law by claiming that it really fired the person for gender
non-conformity.
Lambda points to one such case in its letter to Frank:
For example, just two years ago, a federal court of appeal ruled
that a lesbian who claimed that she was discriminated against
because she did not conform to stereotypical expectations of
femininity did not to have a viable claim under New York state's
Sexual Orientation Non-Discrimination Act (SONDA), which fails to
include an express prohibition on discrimination based on gender
identity and expression.
Curious about this example, I looked it up. The case Lambda refers to
is Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005). Sure
enough, it does not support Lambda's argument and, if it's relevant at
all, shows the opposite of what Lambda suggests. A "weak" version of
ENDA would have helped the plaintiff's case.
([9]Click here to continue reading . . . )
([10]hide)
In the case, a lesbian named Dawn Dawson worked in a hair salon full
of gays, lesbians, gender benders, and general nonconformists. After a
year, she was fired by her pre-op transsexual boss. As is common in
employment-discrimination cases, the employer claimed she was fired
for poor performance (rudeness and inconsistency) and the employee
claimed illegal discrimination. Dawson asserted she was discriminated
against based on her sex, her sexual orientation, and the fact that
she was a masculine-appearing woman. She said this violated both
federal and state law. She lost on summary judgment on both counts --
but her loss had nothing to do with the failure to include "gender
identity" in either state or federal law or with the hair salon�s
ability to say it likes gays but not gender benders.
(1) Federal claim in Dawson
First, take the federal claim Dawson made. Under Title VII, federal
law already generally forbids discrimination based on sex stereotyping
(e.g., a woman perceived as too "mannish") under the Supreme Court�s
1989 decision in Price Waterhouse v. Hopkins. The problem is that
courts are afraid to let gays claim such discrimination because they
suspect it�s a way for gays to sneak sexual orientation protection
into the law. Consider this passage from the opinion:
[I]ndividual employees who face adverse employment actions as a
result of their employer�s animus toward their exhibition of their
behavior considered to be stereotypically inappropriate for their
gender may have a claim under Title VII. When utilized by an
avowedly homosexual plaintiff, however, gender stereotyping claims
can easily present problems for an adjudicator. This is for the
simple reason that �[s]tereotypical notions about how men and women
should behave will often necessarily blur into ideas about
heterosexuality and homosexuality.� [citation omitted]. Like other
courts, we have therefore recognized that a gender stereotyping
claim should not be used to �bootstrap protection for sexual
orientation into Title VII.� 398 F.3d at 218.
If a heterosexual plaintiff claims gender stereotyping, she has a
claim. But if an �avowed homosexual� plaintiff claims gender
stereotyping, courts get very suspicious that it�s an attempt to sneak
sexual orientation protection into Title VII under the guise of
interpretation.
Make of that concern what you will, but the sexual-orientation-only
version of ENDA would have helped Dawson in two obvious ways. First,
she could have made a straightforward sexual orientation claim (though
that claim might have run into other problems particular to her case).
Second, she might have a made a successful gender-stereotyping claim
because, since federal law will now protect gay people from
discrimination, courts will not have to worry about gender
stereotyping claims "blurring" into sexual orientation claims. They
will not be so anxious about letting gay plaintiffs sneak sexual
orientation protection into federal law: it will already be there.
In other words, Dawson lost on her federal claim precisely because
federal law does not prohibit discrimination based on sexual
orientation. Of course, a trans-inclusive ENDA that prohibits both
sexual orientation and gender-identity discrimination would protect
her as well. But so would the new version of ENDA that prohibits only
sexual orientation discrimination since courts would no longer feel
that they have to limit sex-stereotyping claims to heterosexuals.
But it gets worse for Lamda's position. Dawson didn�t even present
competent evidence that she was fired for gender nonconformity.
[I]n contrast to the plaintiff in Price Waterhouse, who proffered
evidence that her promotion to partnership depended upon her
changing her behavior to better conform to gender stereotypes, . .
. Dawson has produced no substantial evidence from which we may
plausibly infer that her alleged failure to conform her appearance
to feminine stereotypes resulted in her suffering any adverse
employment action at the hands of Bumble & Bumble. Thus, her Title
VII claim based upon a gender stereotyping theory must fail. Id. at
222-23.
Thus, on the record, Dawson was not even fired for being a gender
bender. How then could it be, as Lambda asserts, that she lost because
her employer accepted gays but not gender-benders? There is nothing in
the court�s opinion that comes even close to saying that.
(2) State claim in Dawson
Dawson also claimed that she had been discriminated against based on
her sexual orientation in violation of New York state law (which
explicitly protects gays, but not transgenders). She lost on this
claim because the only evidence of any discrimination based on her
sexual orientation came from statements made by two co-workers who
apparently had no role in the decision to fire her. Thus, she
presented no evidence that she had actually been fired for being a
lesbian. Id. at 224-25.
She did not lose this state-law claim, as Lambda suggests, because New
York failed to include �gender identity� in its law and her employer
successfully argued that it fired her based on her gender
non-conformity and not her sexual orientation. Adding gender identity
to New York law would not have saved this employee in a case where she
produced no sufficient summary judgment evidence that she had been
fired either for gender bending or for sexual orientation.
(3) Will ENDA without "gender identity" impliedly overrule Price
Waterhouse?
Lambda also claims in its letter to Frank that if gender identity is
deliberately stripped from ENDA, "increasingly conservative" courts
might interpret this as signalling Congress' desire to eliminate
gender-stereotyping claims of the type recognized in Price Waterhouse,
thus exposing effeminate gay men and masculine lesbians to
discrimination for gender nonconformity rather than sexual
orientation. I suppose anything is possible, but this scenario builds
wild speculation upon dubious hypothesis.
First, nothing determinate about Congress's "intent" can be inferred
from such drafting changes. Silence about "gender identity" might
simply indicate an intent to leave out trangendered people (and most
likely, the narrower class of transsexuals who are surgically altered
or who live life fully as a member of the opposite sex) or it might
indicate Congress thinks there's already sufficient protection for
gender nonconformity in existing interpretation of Title VII (under
Price Waterhouse) or it might mean there weren't enough votes for a
more comprehensive bill or it might mean nothing at all.
Second, the least likely judicial interpretation of congressional
silence on gender identity is that Congress meant to overrule two
decades of federal court precedent based on a standing Supreme Court
decision. The reasoning of Price Waterhouse on sex stereotyping as a
form of prohibited "sex discrimination" holds regardless of what ENDA
includes. There will be no legislative history to suggest that
Congress meant to overrule Price Waterhouse by excluding gender
identity from the bill. Effeminate gay men and masculine lesbians
would have potential claims under the "weak" ENDA for sexual
orientation discrimination and would also likely have stronger claims
for sex stereotyping under Title VII.
Third, for reasons discussed above, even if courts strained to infer
that Congress meant to overhaul sex-discrimination law silently by
passing a "weak" ENDA, even that would not hurt gay plaintiffs making
sexual-orientation discrimination claims under ENDA. There are no
reported cases yet in which an employer successfully made the
contorted we-like-gays-but-not-gender-nonconformists claim Lambda
hypothesizes. Nor, as a factual matter, should we expect such cases.
One thing is clear: federal law does not currently protect
transsexuals (as opposed to manly women or effeminate men) from
discrimination in private employment. ENDA is probably the best chance
to protect transsexuals from private employment discrimination
nationwide in the near future. But if Frank is right that the bill
can't pass with gender identity included, it's hard to see what a
trans-inclusive ENDA would accomplish for the transgendered until
members of Congress are "educated" about the matter. Nobody knows how
long that might take. Another uncertainty is whether, even if ENDA
passes the Senate, President Bush would sign it. A trans-inclusive
ENDA would make both Senate passage and presidential signature less
likely than they already are.
If Lambda and other groups want to insist that ENDA should be
trans-inclusive no matter what the cost to gay people in 31 states who
are now without statewide employment protection and aren't likely to
get it anytime soon, that's fine. They can certainly do so as a matter
of principle, or morality, or fairness, or political
coalition-building. But their legal argument about the inadequacy of
the "weak" ENDA for gay Americans is makeweight. They should stop
trying to argue that laws protecting gay people from discrimination
don't really protect gay people from discrimination.
References
1. http://en.wikipedia.org/wiki/Image:US_LGBT_civil_rights_August_2007.svg
2. http://www.thetaskforce.org/activist_center/ENDA_oct1_letter
3. http://wockner.blogspot.com/
4.
http://www.baywindows.com/ME2/Audiences/dirmod.asp?sid=008EC9FBCFF24AD18614290016BE1303&nm=Current+Issue&type=Publishing&mod=Publications%3A%3AArticle&mid=8F3A7027421841978F18BE895F87F791&AudID=0813BC739F2044E5A03DCF2DE3FDF7C9&tier=4&id=BDABC1E03FDF46C58E9356AFD1E2015E
5. http://citizenchris.typepad.com/citizenchris/2007/10/enda-gay-rights.html
6. http://www.americablog.com/2007/10/transgender-fiasco.html
7. http://www.house.gov/frank/
8. http://data.lambdalegal.org/pdf/ltr_enda_frank.pdf
9. file://localhost/var/www/powerblogs/volokh/posts/1191697324.html
10. file://localhost/var/www/powerblogs/volokh/posts/1191697324.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
