Posted by Dale Carpenter:
Lambda's ENDA:
http://volokh.com/archives/archive_2007_10_14-2007_10_20.shtml#1192718452
Today, [1]on a 27-21 vote, the House Labor Committee approved the
Employment Non-Discrimination Act (ENDA), [2]H.R. 3685, which would
ban discrimination in private employment based on "actual or perceived
sexual orientation." Many gay-rights groups, including most notably
the national gay legal organization Lambda Legal, oppose the bill
because it does not include "gender identity," a phrase that would
protect transsexuals and other gender nonconformists from
discrimination.
In a recent [3]blog post, I criticized [4]the view taken by Lambda
Legal that the �weak� ENDA just passed by the Labor committe � the
version excluding �gender identity� � would provide insufficient
employment protection to gay people. That critique was shared by
lawyers and commentators in the blogosphere (for especially
well-reasoned critiques, see Chris Crain's analysis [5]here and John
Aravosis' analysis [6]here). Rep. Barney Frank, who introduced H.R.
3685 after he and other House leaders determined on a vote count that
a broader bill could not pass, [7]criticized Lambda by name in a
lengthy and passionate speech on the floor of the House. I also heard
privately from Lambda lawyers and supporters, including experienced
gay-rights litigators, who opposed Lambda�s legal critique of a
limited ENDA on purported gay-rights grounds.
Lambda has now offered [8]a detailed and substantive response to these
critiques. Lambda�s concerns have to be taken seriously, coming as
they do from an organization with experienced lawyers and a rich
history of doing important work for the legal rights of gay Americans.
As I�ll explain below, while Lambda has offered a clearer and more
reasonable explanation of its views, its concerns remain exaggerated.
The House should not reject H.R. 3685 out of misplaced concern for gay
employees.
([9]Click here to continue reading . . . )
([10]hide)
Some of Lambda�s latest response goes to questions of principle and
fairness to transgendered employees not covered by a limited ENDA, to
defending itself against charges that its opposition to a limited ENDA
is elitist and unresponsive to the needs of millions of gay Americans
in 31 states with no statewide employment protection, and to whether
the ultimate goal of protecting both gays and transgenders is better
served by passing a limited bill immediately or waiting until a more
expansive bill can be passed in a future Congress. I don�t have
anything to say about those issues here. Instead, I want to address
Lambda�s argument that a limited ENDA won�t offer adequate legal
protection to many gay people.
Given its institutional role and mission, Lambda�s strong desire for
an expansive ENDA including both sexual orientation and gender
identity is perfectly understandable. If I were a plaintiff's lawyer
or headed an organization of civil-rights legal advocates, I would
want as broad a set of civil-rights laws as I could get so that I
would have instances of discrimination covered in every possible way,
whether it is based on sexual orientation, gender identity, some
combination or overlap of these, or something else. I would especially
want the broadest possible coverage in an era when courts do indeed
seem increasingly to read the liability and remedial provisions of
civil-rights statutes quite narrowly. If the choice were, then,
between an ENDA that included both gender identity and sexual
orientation and an ENDA that included only sexual orientation, that
would be an easy call. But if Barney Frank is right that the votes
aren't there right now for a trans-inclusive ENDA, and I certainly
don't have the political acumen or inside knowledge of Congress to say
that he's wrong, the real choice right now is between passing out of
the House a "gay-only" ENDA or no ENDA.
Given that choice, I think a good litigator or civil-rights advocate
would want to maintain the political momentum created by House passage
of a gay-only ENDA unless he thought it would do more damage than good
or would accomplish so little good that other considerations (of
fairness to trans people or justice or something else) would override.
Lambda�s legal worry is that a limited ENDA might accomplish very
little good and might even backfire, eliminating existing protections
in federal law. It comes down to a concern that effeminate gay men and
masculine lesbians might effectively have no legal protection from
discrimination for their gender nonconformity under federal law if a
limited ENDA passes. Right now, gender nonconforming gays have better
arguments for legal protection than do gender conforming gays under
federal law. After a limited ENDA passes, worries Lambda, an employer
might successfully argue that it discriminated against the plaintiff
based on her gender nonconformity (her being a masculine woman) and
not her sexual orientation (her being a lesbian).
I have [11]previously written on this blog that, as a practical and
factual matter, it would be rare to see a case in which comments and
actions based on a person�s gender nonconformity (�hey man, you walk
like a girl�) were not accompanied by comments directed explicitly at
a person�s actual or perceived sexual orientation (�hey faggot�). I
base this observation on the many reported Title VII cases in which
employees were subjected both to anti-gay abuse and to sex
stereotypes. The two kinds of discrimination tend to go together,
which is why federal courts keen on excluding sexual orientation
protection from Title VII have thrown out what would otherwise be
perfectly good sex stereotyping cases because they involve gay
plaintiffs: they think gay plaintiffs are trying to sneak sexual
orientation protection into Title VII under the guise of sex
stereotyping claims.
If, as I predict, the large run of cases in which an employee suffers
sex-stereotyping or gender-nonconformity discrimination are
accompanied by direct evidence of anti-gay discrimination then the
employee should have a cognizable claim under even a limited ENDA
prohibiting only sexual-orientation discrimination. Federal courts
that have previously withheld Title VII protections from gay
plaintiffs claiming sex stereotyping should also have some of their
policy concerns alleviated once gay people are actually protected in
federal law under a limited ENDA.
Lambda makes no response to these arguments about the factual patterns
in anti-gay discrimination cases or to the possibility that a
protecting gays from discrimination in federal law might reduce the
pressure courts feel to disaggregate sexual orientation from gender
nonconformity under Title VII.
In this connection, Lambda has all but abandoned its reliance on
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005), which it
originally claimed in an open letter to Rep. Frank was an instance
where an employer successfully argued that it fired a lesbian for
being too masculine under a state law that prohibited only
sexual-orientation discrimination. Neither the facts in the case nor
the court�s discussion of the relevant law supported that view, as I
discussed at length in [12]my previous post. Lambda now calls that
case a "sideshow." I agree.
Having found no reported decisions to support its fears, now Lambda
says that we should be unsurprised since there are few reported cases
dealing with sexual-orientation statutes. There aren�t a lot of such
cases, but we do have experience with state, local, and county laws
stretching back some three decades. The fact that inventive employers
with high-priced lawyers haven�t successfully defeated even a single
claim in a reported decision on grounds suggested by Lambda undercuts
the reasonableness of Lambda�s fear that a limited ENDA will be
insufficient. The further fact that, as Lambda puts it, many cases do
not make it to a stage where there�s a reported decision (either
because of settlement, or because the claim is weak, or because a
plaintiff�s lawyer won�t take the case, or in inexperienced) neither
supports nor undermines the view that a gay-only law doesn�t
adequately protect gays. The fact that many cases settle, for example,
may simply be evidence that employers are not confident about the
success of the contorted we-like-gays-but-not-gender-benders legal
theory Lambda hypothesizes. In short, the absence of published
evidence for Lambda�s view is not evidence for Lambda�s view.
But let�s assume, contrary to what we should expect as a factual
matter based on past decisions, that an employer manages to persuade a
court that the real basis for its discrimination was the lesbian�s
gender nonconformity rather than her sexual orientation. Such a
plaintiff, Lambda hypothesizes, might then be put in a double-bind.
(1) On the one hand, she would not have protection for her gender
nonconformity under a limited ENDA because it would omit protection
for �gender identity,� defined in an earlier version of ENDA ([13]H.R.
2015) to mean �gender-related identity, appearance, or mannerisms or
other gender-related characteristics of an individual.� (2) On the
other hand, Lambda fears that she might not have protection for her
gender nonconformity under Title VII because federal courts might
abandon the current interpretation of that law, under which �sex
stereotyping� is considered a form of prohibited sex discrimination.
Protection for Gender Nonconformity in a Limited ENDA
First, is it true that there will be no protection for gender
nonconforming homosexuals under a limited ENDA? Lambda undersells the
potential of a limited ENDA for its macho lesbian. Gay people are
often associated with certain gender-nonconforming traits. Recall that
H.R. 3685 actually prohibits discrimination �because of [an]
individual�s actual or perceived sexual orientation.� (emphasis added)
Under this language, if the employer �perceives� the employee is a
lesbian based on her gender nonconforming behavior or appearance, and
discriminates against her for this reason, the employer has violated
even the limited ENDA.
A possible problem with this view is that it doesn�t seem to reach the
case where the employer successfully argues that the perceived
lesbianism of the plaintiff had nothing to do with the discrimination;
it was her mannishness that got her into trouble. Another potential
problem is that, having introduced an expansive ENDA with �gender
identity� included before adequately counting votes for the bill in
the House, overly optimistic gay- and trans-rights activists have now
handed opponents a weak but plausible argument that the elimination of
�gender identity� from the bill means there should be no protection
for even gender nonconformity associated with homosexual orientation
under the limited ENDA. There will be a debate about all of this in
litigation and I expect that Lambda, having argued now that a limited
ENDA is inadequate, will argue after it passes that it does cover
discrimination against homosexuals arising from their gender
nonconformity. Whether and to what extent gender-nonconforming gay
plaintiffs might be successful with these claims we can�t know.
Protection for Gender Nonconformity in Title VII
More importantly for our purposes, how reasonable is the second fear,
that there might be no protection for gender nonconformity under Title
VII if a limited ENDA passes? Lambda worries that increasingly
conservative courts �profoundly unsympathetic toward plaintiffs in
employment discrimination plaintiffs generally� and hostile to
gay-rights litigants in particular, might latch on to the elimination
of �gender identity� from ENDA as evidence that Congress intended to
eliminate protection from gender-nonconformity discrimination under
Title VII. Lambda cites as examples of courts� hostility cases
involving race and other forms of discrimination in which Lambda
believes the courts took unduly restricted views of civil-rights laws.
Lambda exaggerates the aggressiveness of conservative federal courts.
These same courts have, for example, now interpreted Title VII to
prohibit same-sex sexual harassment. Oncale v. Sundowners Offshore
Services, Inc., 523 U.S. 75 (1998). Of course, if you really believe
that conservative judges are incapable of reaching principled (as
opposed to result-oriented) decisions, and will throw out every rule
of statutory construction and precedent to reach a preferred policy
result, then you must despair that the addition of any words to ENDA
will save you from their evil grip.
To assess whether this fear of wild and aggressive conservative courts
is very plausible in the specific context
of a gender-nonconformity claim under Title VII, recall that the
Supreme Court declared in 1989 in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), that sex stereotyping is a form of sex
discrimination. While there was disagreement on the Court in that case
over issues like causation and burden-shifting, there was no
disagreement on the basic principle that sex stereotyping is
impermissible. That Court included current Justices Scalia and
Kennedy. The Supreme Court has never withdrawn, overruled, or even
limited its understanding, despite changes in the Court�s personnel.
Although Lambda ominously warns that the Supreme Court "could change
its mind" and reverse Price Waterhouse, no justice on the Court since
that case has questioned the basic principle it established about sex
stereotyping.
The sex-stereotyping theory of Price Waterhouse has been followed by
every circuit court to consider the issue, even the more conservative
courts. Moreover, while the facts of Price Waterhouse involved a woman
deemed too �macho� for a job, the same gender-nonconformity protection
has been extended to effeminate men in cases like Nichols v. Azteca
Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir.2001).
As its only example of right-wing judges undermining sex-stereotyping
claims, Lambda says that Judge Richard Posner �disagreed� with Price
Waterhouse in a concurring opinion in Hamm v. Weyauwega Milk Product,
Inc., 332 F.3d 1058, 1067-68 (7th Cir. 2003) (Posner concurring).
That�s an oversimplification. Actually, Posner supported the idea that
discrimination for gender nonconformity may be evidence of sex
discrimination in a case where both men and women are eligible for a
job. But he was critical of the artificial distinction between
homosexual plaintiffs and heterosexual plaintiffs claiming gender
nonconformity discrimination that has arisen in the federal courts
since Price Waterhouse. I assume Lambda also bemoans this distinction.
Do we have any good reason to believe that even conservative judges
will be bold enough to hold that Congress has silently or impliedly
overruled Price Waterhouse by passing ENDA without �gender identity�
protection? There are several reasons to believe this concern is very
far-fetched.
ENDA Does Not Limit or Amend Title VII
Start with the pedestrian point that ENDA is not an amendment of Title
VII, so there�s no obvious reason anything we do with ENDA should have
a dramatic effect on it. Nothing in ENDA states that it is overruling
part of Title VII. Nothing in the legislative history will say that
Congress passed this expansion of civil rights law partially in an
effort to limit civil rights under Title VII.
In fact, the decisive response to Lambda�s fear about Title VII is
contained in ENDA�s Section 15, entitled �Relationship to Other Laws�:
This Act shall not invalidate or limit the rights, remedies, or
procedures available to an individual claiming discrimination
prohibited under any other Federal law or regulation or regulation
of a state or political subdivision of a state.
Any argument that Congress silently overruled part of Title VII in
ENDA would be an argument that it �limit[s] the right [to be free of
sex stereotyping] . . . available to an individual claiming
discrimination prohibited under [Title VII].� That argument would fail
under Section 15. Lambda does not even mention this section of ENDA in
its analysis.
Second, when Congress wants to overrule federal court rulings it is
quite capable of doing so explicitly. It did so when it overruled
restrictive federal court decisions in 1991 amendments to the Civil
Rights Act of 1964. It did so again recently when the House voted to
overrule the Court�s recent Title VII statute of limitations decision.
Congress does not have to resort to subterfuge to overrule the Court
and it would be surprising to have a court find that it
uncharacteristically did so by merely excluding a phrase from ENDA.
Third, consider how some basic principles of statutory construction
would apply in a post-ENDA world. It would not be unusual for a court
to claim that the failure to include something in Statute A (e.g.,
Title VII) should influence how we interpret Statute A (Title VII). It
would be very unusual to suggest that (1) simple failure to include a
phrase ("gender identity") (2) in the passage of Statute B (a limited
ENDA) should be interpreted (3) to impliedly overrule two decades of
consistent federal court interpretation (sex stereotyping) (4) under
Statute A (Title VII). There is no precedent I have seen for that
extremely dubious style of statutory interpretation. That is why
Lambda, long a respected voice for its legal acumen and honesty, is on
such thin ice.
It would also not be unusual for a court to consider the words used in
one statute in its interpretation of words used in another statute
involving the same subject matter in an effort to harmonize the public
policy objectives embodied in the laws. But that, too, would not be a
principle at issue here. There is no disharmony in having a Title VII
that protects gender nonconformity and an ENDA that protects sexual
orientation. They are complementary.
Besides, there are many other and more plausible understandings about
why Congress took �gender identity� out of ENDA. The correct one would
be simply that there weren�t enough votes to include it and hence that
Congress wasn�t doing anything substantive by striking it from the
bill. Another interpretation would be that Congress thought most of
what would be protected by the definition of �gender identity� was
already protected under Title VII (excepting transsexuality). Indeed,
gender nonconformity is in some ways more generously protected under
existing Title VII case law than it would be under an expanded ENDA,
given the broad exemptions for �religious organizations� and other
limitations on the scope of liability contained in both versions of
ENDA.
A Hypothetical Gay Plaintiff's Options Under a Limited ENDA
Finally, Lambda posits that a plaintiff might be caught between the
gender- nonconformity "rock" of a limited ENDA and the
sexual-orientation "hard place" of Title VII. �Thus,� Lambda
concludes, �a non-inclusive version of ENDA risks having a court
decide that an employee cannot pursue a claim for sexual orientation
discrimination because it concludes that what was going on was
discrimination based on gender nonconformity, but then not allow a
Title VII claim by reading the Price Waterhouse case overly narrowly.�
Contrary to Lambda�s assertion, it is the defendant employer that�s
placed between the rock of the gay protections of a limited ENDA and
the hard place of the gender- nonconformity protection of Title VII.
To see why, imagine you have a butch lesbian fired by a school in
which she works. She argues that the school fired her either for her
sexual orientation or her gender nonconformity or for some combination
of these.
On the one hand, if the school fired her for being a lesbian she has a
claim under the newly passed, gay-only ENDA. Her lawyers would point
to the times she was called a "dyke" and was told to find man to
please her and turn her into a real woman. Her lawyers would observe
that the fact that the school employs other lesbians is no more a
defense to the claim than the fact that an employer hires some black
people is a defense to a claim of race discrimination. On the other
hand, if the employer tries to weasel its way out of ENDA liability by
saying that it fired her for being too butch, she�d say that it was
then liable for sex stereotyping under Title VII.
Therefore, if the employer tries to get out of Title VII liability by
saying she�s a lesbian claiming sexual orientation discrimination, it
has walked right into ENDA. If it tries to get out of ENDA liability
by saying she�s a gender bender claiming sex stereotyping, it has
walked right into Title VII. Depending on the facts, if the employer's
motives include hostility both to gender nonconformity and to sexual
orientation the plaintiff can still say the discrimination was
"because of" actual or perceived sexual orientation. Any way you slice
it, the employer is stuck.
And if the employer, citing [14]Lambda's letter to Barney Frank and
its [15]recent elaboration of the same concerns, tries to make the
argument that Congress silently repealed two decades' worth of Title
VII precedent on sex stereotyping by enacting an entirely separate
federal law, her lawyers would make the excellent argument that this
was not even a plausible interpretation of ENDA�s effect.
Since gender nonconformity already enjoys a large measure of
protection under settled Title VII precedents, what's really at stake
in the debate over whether to include "gender identity" in ENDA is
protecting transsexuals from discrimination based on their
transsexuality. This is a very small group of people and, short of
being protected from discrimination in a larger bill like ENDA, they
are not likely to get federal legislation protecting their employment
interests unless a concerted effort is made on their behalf by
political allies. That work has evidently yet to be done in sufficient
measure by the groups who now oppose a limited ENDA out of solidarity
with transsexuals.
The upshot is that it seems Lambda and many other gay organizations
really oppose ENDA because they think it is simply wrong to exclude
protection for transsexuality from a gay civil-rights law, even if
that means waiting a significant additional time to pass any
protection at all. I don�t share the view that protection for gays
must await protection for transsexuals, but I understand and respect
it. The appeal to gays� legal self-interest, by contrast, is a
diversion from the real issue.
References
1.
http://www.timesrecordnews.com/news/2007/oct/18/house-committee-approves-anti-workplace-discrimina/
2.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h3685ih.txt.pdf
3. http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191697324
4. http://data.lambdalegal.org/pdf/ltr_enda_frank.pdf
5. http://citizenchris.typepad.com/citizenchris/2007/10/new-enda-weaker.html
6.
http://www.americablog.com/2007/10/top-gay-legal-group-misrepresents-court.html
7. http://www.house.gov/frank/enda%20special%20order%20101007.html
8. http://data.lambdalegal.org/pdf/enda_llanalysis_20071016.pdf
9. file://localhost/var/www/powerblogs/volokh/posts/1192718452.html
10. file://localhost/var/www/powerblogs/volokh/posts/1192718452.html
11. http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191697324
12. http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191697324
13.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h2015ih.txt.pdf
14. http://data.lambdalegal.org/pdf/ltr_enda_frank.pdf
15. http://data.lambdalegal.org/pdf/enda_llanalysis_20071016.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
