September 16, 2007
Support for H.R. 2015: Employment Non-Discrimination Act
On April 24, 2007, the Employment Non-Discrimination Act of 2007 was proposed to Congress. The new federal legislation is meant to "provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity" and would protect certain employees from employment discrimination on those bases. The Employment Non-Discrimination Act of 2007, H.R. 2015 (as of Sept. 16, 2007).
Basically, the Act would provide coverage where Title VII is currently lacking (at least according to many courts), as the text of Title VII provides protection against discrimination on the basis of "sex." Many courts interpret "sex" as different from "gender" and/or "sexual orientation" in order to preclude protection for gay and transgendered employees. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). Although, some judges find that the Supreme Court decision in Price Waterhouse lends credence to the idea that sex discrimination includes discrimination based on gender stereotypes and have held that gay employees are entitled to Title VII protection. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001). These inconsistent holdings could benefit from clarification and this proposed Act would provide consistent protection for many employees.
The House of Representatives is currently holding hearings on the proposed Act, and the text of the Act could be altered significantly, but the current version of the Act is supported by recent empirical research. Specifically, the Williams Institute recently published a booklet containing the summary from surveys conducted in the "mid-1980s to mid-1990s." The literature review, conducted by M.V. Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, expressed a consistent trend between and amongst studies with varying methodological and contextual bases: "sexual orientation-based and gender identity discrimination is a common occurrence in many workplaces across the country." The Report can be found on the Williams Institute website.
Many influential Americans are stepped forward to testify in favor of passing the Bill on Sept. 5, including openly gay members of Congress, professors and scholars as well as influential members of the community, such as an openly gay police officer (Boston Globe, Sept. 5, 2007).
It is worthwhile for legal scholars and the LGBT community to monitor the progress of this Act and future posts will update the status of the Act as it progresses through Congress.
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