Wednesday, November 7, 2007
The House Passes ENDA
On Wednesday, the House passed the Employment Nondiscrimination Act (ENDA) by a 235-184 margin. As we've posted earlier, the president has threaten to veto an earlier version of this bill, which adds sexual orientation to Title VII's list of protected characteristics, yet was stripped (before the veto threat) of its protection for transgendered employees due to pragmatic political reasons. The bill garnered 35 Republican votes, while 25 Democrats voted against it.
Sen. Kennedy intends to introduce the measure in the Senate shortly and reports are that a properly worded bill could get enough Republican backing to pass. However, the House vote was well short of the 2/3 majority needed to override a possible veto, so the Senate's actions may be not matter in the end.
Although ENDA is certainly a compromise measure that could be much stronger, I'm still of the belief that something is better than nothing. Of course, there still may be nothing if there's a veto, so stay tuned.
If the ENDA bill becomes law, every job applicant who seeks employment with a Federal, State, or local government agency or contractor or who is a government worker or contractor employee will likely be asked about their sexual preference. That means people who apply for government jobs will have to admit their sexual preferences to the government, often under penalty of perjury on government job application forms.
Agencies and contractors will ask about sexual orientation because ENDA Section 10 requires the Department of Justice to enforce ENDA just like Title VII (ENDA specifically says that all Title VII procedures, precedents, etc. apply to ENDA). DOJ uses EEO-4 forms to collect statistical information on race and sex for Title VII enforcement, so ENDA would prompt DOJ to add sexual preference to mandatory EEO-4 data (using Title VII Section 707 and Section 709 authority). Section 9 of ENDA purports to limit EEOC collection of sexual-preference statistics, but does not limit DOJ or other agencies. ENDA Section 9 also does not restrict private litigants issuing subpoenas for sexual orientation information or courts from enforcing them. (EEO-4 filers are required to visually estimate race and sex of employees who decline to state their race or sex, so we have to wonder if EEO-4 filers would be asked to identify sexual preferences in the same way. Can an employer tell whether someone is gay or lesbian by looks?)
DOJ will use statistics on sexual preference to identify possible ENDA violations to sue over. DOJ's Title VII enforcement approach will be extended to ENDA. Approved by the Supreme Court in Hazelwood School District v. United States, 433 U.S. 299 (1977) and Teamsters v. United States, 431 U.S. 324 (1977), this involves filing pattern and practice suits based on statistical information supplemented with "examples" of disparate treatment. ENDA Section 4(g) supposedly bans "disparate-impact" lawsuits, but that clause does not restrict "pattern and practice" lawsuits like those Title VII Section 707 authorizes.
In practice, ENDA will impose hiring quotas for gays and lesbians through DOJ enforcement guidelines. To a DOJ bureaucrat with a hammer every problem looks like a nail. If the ENDA bill is enacted, the DOJ will establish enforcement threshold quotas for gays and lesbians in government jobs. Agencies and contractors will then base actual hiring and promotion quotas for gays and lesbians on DOJ's requirements. We can expect this because Title VII enforcement already works this way. (The Department of Justice Employment Litigation Section relies on "statistical targeting" using EEO-4 and census data to find "irregularities in employee selection" at agencies or contractors, which means deviations from DOJ's quotas. If ELS can turn up any example of discrimination (including any complaint from a disgruntled worker) it will file a pattern and practice lawsuit. The burden of proof is then reversed-- the employer must prove that it had a lawful reason to reject every single individual applicant or potential(!) applicant during the statute of limitations period or be found liable to all of them.
Under ENDA job applicants and employees of private businesses would probably have to answer sexual-orientation questions as well. Though ENDA Section 9 would forbid EEOC to "collect" or "compel the collection" of sexual-orientation statistics, EEOC might give Section 9 a narrow construction. For example, EEOC might rule that employers could submit sexual-orientation data "voluntarily" to dispute an ENDA complaint. In any event, many businesses threatened with "pattern and practice" lawsuits (which ENDA Section 4(g) does not limit) would decide to compile sexual-orientation data themselves for defensive purposes. Some other laws might limit employers asking about sexual orientation, but ENDA does not.
(ENDA purports to forbid sexual-orientation quotas. However, ENDA's language is cribbed from Title VII, where it is famously a dead letter. Title VII enforcement has taught everyone that quotas are the only way to avert DOJ Title VII lawsuits, though the word "quota" should not used. Whether we say "goals and timetables," or say nothing at all (having been taught to manage all quotas orally to make them easier to deny, as the Supreme Court sanctioned in Gratz and Grutter), DOJ won't tolerate any hiring standards which do not result in quotas. Just look at DOJ's "firefighter's exam" and similar lawsuits.)
Posted by: Mark Seecof | Nov 12, 2007 5:50:23 PM